Walker v. Birdwell

21 Tex. 92

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Hemphill, Ch. J.

The assignments of error present no sufficient ground for the reversal of the judgment.

There may possibly be legal force in the position, that the citation, preliminary to the issue of a judicial attachment, should not be returned until the first day of the Term after its issuance ; but if there be such force, it has no application in this case. The original citation was returned with the certificate of the Sheriff, that the defendant was not to be found in the county. Upon this, the plaintiff might have sued out a writ of judicial attachment. There was no necessity for an alias citation ; and upon that ground, if no other, there can be no objection to the return of the alias prior to the day at which, in any event, it must by law be returned.

There can be no objection to the return of the officer, or the affidavit of the plaintiff, that the defendant so secreted himself that the ordinary process of law could not be served upon him. The attachment would have issued without such affirmation ; and an original attachment might have been obtained on such a state of facts ; but the circumstance of concealment is a predicament which with peculiar force and propriety, involves the interposition of judicial attachments. The levy of this species of attachment has been held equivalent to notice by citation, (13 Tex. R. 269,) and the writ is therefore peculiarly adapted to cases where the defendant secretes himself ; whereas if he were beyond the limits of the State, it might be urged with much force that he should be entitled to notice by publication.

None of the objections are well taken. No defence was set up to the merits ; and it is ordered that the judgment be affirmed with damages for the delay.

Affirmed with damages.