The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-05-06
THE HIGHER COURTS.
SUPREME COURT.

|
,eeding in the cause which must have
taken plsce in term time
viz; the order oveIruling the motion
for a new trial, bears date the 9th day OF
March, 1884. The appeal bond was APP
proved and fled March 81, 1884. More
than 20 days thereafter. 1t does not,
therefore, afiirmatiYely appear from the
record that this court has jurisdiction
of the appeal. II has been our uni
form rule not TO entertain jur isdic-
ton under such circumstances, though
no motion to dismiss has been filed.
The present appeal will therefore, be
dismissed
William Wood, VIZ. w. A, Huffman, |
from Tarrant county. Willie c. i. This |
suit was originally brought to recover |
the value Of certain machinery alleged |
to have been wrongtuuy converted To
the use Of appellant. BY an amended |
petition, 1t was changed into n suit TO
recover damages for wrongiully suing
out an attachment, and levying same up
on the machinery and having 1t solu az
a nominal price to satisfy a debt due
from the appellant to appellee. This OF
course subjected appellant to tho pay
nent of all costs up to the time of ming
the amendedpetition. In computing time
in passing upon the special demurrer Set
ting plimitatiOn, limitation commences
from the date of the aCcrual of the cause
of action and ceases upon the ming OF
the amended petition. AS il requires
| two years 70 bar an action OF THIS char
acter Dear Bros. IL HirsCh VS.. Marx ~
! Kempner, Texas Law Review, 1851
and the machinery was seized under
the attachment December IL, 1882, and
the amended petition was filed Deem
| her ., 1884, the action was not barred.
An attachment is wrongfully sued
ont when the grounds upon which II is
based DO not exist, and the defendant IN
attachment is entitled TO recover what.
ever actual damages he mas sustained
by the seizure Of his property under the
writ so wrongfully obtained, (Same
authOrity)
The ground stated in the affidavit for
attachment was That appellant and Il
party jointly sued with him, had trans
ferr6d their property for the purpose Oi
deirauding their creditors. This the
petition denies and alleges to DO untrue
in every respect. The claim Is for act
ual damages. The property is alleged
to be Of the value of ~ 400, but at the
sale under the attachment 1t brought
only Sl5. Appellant was, therefore,
damaged to large amount by tho un-
lawful seizure and forced sale OF his
property. There was no claim made for
u nlhlClouS prosecution VI gho WIN
hence the authority Of HinkseY vs..
James, e Ala, 622) and Lockhart vs..
Woods (3S Ala, G3l), holding that an at
tachment plaintiff, whom sued for ma
| liCiOus prosecution, is not confined IN
his defense to showing that the facts on
which he sued out the attachment
existed and amounted to probable cause
and That he may show any other causes
TO have existed for which the attach
mont might have issued, are inspplica-
bic. Reversed and remanded.
Il. L. Anderson VS.. Il. ID. Boyd, from
Ellis county; Willie, c. j. Where both
the Original and amended petition rely
upon Judgment obtained by B against
A, that tho one alleges tho same TO be In
full force and tine other, that il was dor
mant or had lost its lien, is matter OF no
consequence. Both are but the loyal
conclusions of the pleHder, and whether
the facts averred had the one effect OF
the other upon the judgment was for
the Court 90 determine upon the state OF
case made 10y the pl5adings. Limitation
therefore, ceased to run against the
Judgment when tho original poutiou
was filed.
Under the laws in force when this
Judgment was obtained, January II
1874, a scire lacias might be sued out on
q Judgment which though not dormant
has lost its lien, master
son vs.. Cuudin. IS Texas 40, ant
the plaintiff can use any remedy
known to the law To give full force anI
and vitality to his judgment. tits o
no Importance, therefore, whether The
suit be one by scire facias or an an &C
ton for debt.
Where B's attorney is not authorize,
to receive claims against OF her parties II
setil 4ment 81 a Judgment against \
his action in su doing is no
binding on b., and The only eilsCt tina
could possibly be given 10 IL was " 70
quire of B. due diligence In the colleC
ton of the claims, Che claiming tina
said claims were given simply a- col
lateralE) and their application OF thei
proceeds toward diminishing th
amount due on the judgment (POrti
vs.. Ennis, ~ Texas 5Ii; Wright vs.
DALEY 20 Texas 1900. Where the Onl
note, in the collection Of which du
diligence was not used, was a partner
ship claim of n. and c., its transfer {
secure the separate debt of the former
passed no title To B. without the cor
sent OF G. lGoode vs.. MCCartner,
Texas 1881. Affirmed.
ID. l.. Robinson ct al. W. G. DOuthi
ct AL; from Collin county. StaytOn,
Whore description OF the land in dee
is I'm these words: "SiX hundred an
forty acres Of land, situated I'm Coll
county, in the state OF Texas, locate
surveyed and patented in the headrigl
certificate OF James Osgood, the patei
being No. l5s, Vol. -. Beginning at
stake, or post, 100 yaras east OF an oil
tree ON north boundary line; theme
south three-fOurths Of mile TO pos
thence east, north and west 80 as
make $40 acres, or include the abO'
amount Tho deed Is moi void Tor u
certainty in the description of the Ian
and tho record OF il Is constructive n
tice 20 subsequent purchasers.
! Where certain elm tr
IL called for In dee
of which, II the true locality was show
the western lire of the track convey,
would be easily established, and fro
this and the northern lino,the nOrthwe
- corner accurately determined, and {
form OF the survey, course, distance nj
area being given, from that corner q
true locality of tho entire tract Uou
easily DO asoertained IL was necos'
~ TO identity that tree and proof W
admissible 10 show that ~ the time {
deed was made, for the purpose OF /
sisting the person writing the decd
properly describing the land intend
TO bo conveyed, the grantor pointed o
n certain Elm tree from which the W,
III tern line was TO run, In direction nor
WI and south, at a distance 100 ynras east
III Where appellees claim tile through
10 warranty deed from A to b and al
the making of this decd, pt trustg
sale made by virtue Of a trust deed o.
outed by A, G purchased the land
atterward reconveyed A, subsequent
TO a conveyance from A under viii
appellants claim, proof OF this fact isi
admissible,
Any purchas by the vendor OF an
cumbrRnce on land conveyed by h
through a warranty deed emures TO
benefit OF vendee, and that such encu
branco may haYe been first purcha'
by another and atterward acquired
the vendor does not alter the case.
nm The estoppel arising upon breach
Jul warranty is not restricted to cases
which personal action would
ms against the WnrrantOr, hut 10 exists