This suit was brought August 9, 1894, by the appellant, S.H. Caldwell, against appellee, L.A.L. Lamkin, for $3,787.30 due by note of date April 14, 1891, executed by appellee, Lamkin, to Y.Q. Caldwell and S.A. Miller as administrators of the estate of R.D. Caldwell, deceased, which note was by the administrators *Page 32 of the estate, for value, transferred without recourse to appellant S.H. Caldwell, who sued as owner and holder. On the same day attachment was issued against Lamkin to Caldwell County, Texas, and was on the same day levied on two tracts of land as the property of Lamkin, and a certified copy of the attachment, and return of levy was on August 9, 1894, deposited with the county clerk of Caldwell County for record, the land levied on being situated in Caldwell County. September 4, 1894, in vacation, the plaintiff amended his petition, making W.R. Johnson and F. Flournoy parties defendant upon the alleged ground that they claimed to own the land levied on. Prayer for judgment for debt and foreclosure of attachment lien as against all the defendants. September 25, 1894, Lamkin filed an amended plea in abatement and asked the quashal of the writ of attachment upon the ground that the sureties on the bond for attachment, to-wit: A.B. Lamb and W.T. Wrather were non-residents of the State of Texas, and were resident citizens of the State of Tennessee, and had no property in this state, wherefore the bona furnishes no security to defendant and is not the bond required by law. But on October 19, 1894, defendant Lamkin, by leave of the court, amended this plea setting up the same facts and further showing how the clerk of the state court came to approve the bond. This plea was sworn to. On the same day that the first amended plea in abatement was filed, defendant Lamkin filed a general denial, expressly premising that it was done not waiving his plea in abatement. Defendants Johnson and Flournoy answered, each claiming one of the tracts of land levied on and resisting the foreclosure of the attachment lien upon the grounds that they had valid debts against defendant Lamkin which had been respectively secured by mortgages on the land and deeds from Lamkin to their respective surveys of land in satisfaction of their debts anti mortgages. It is unnecessary, as we think, to further state the particulars of their pleas as, according to our views of the case, plaintiff was not entitled to a foreclosure of the attachment, because the attachment itself was properly quashed. On September 28, 1894, plaintiff filed a motion to substitute the attachment bond, tendering the bond with good sureties resident in the State of Texas. September 29, 1894, plaintiff filed a reply to the answer of Johnson and Flournoy which we deem it unnecessary to notice in detail.
On the same day that defendant Lain kin filed his amended plea in abatement October 19, 1894, plaintiff filed a motion to strike it out upon the ground that it was filed after a plea to the merits, that there was no law requiring sureties on attachment bonds to be residents of the State, that the bond first filed was sufficient, being in form and approved by the clerk of the court constituting a full compliance with the statute.
On October 19, 1894, the case was tried by the court without a jury, when the court overruled plaintiff's motion to substitute attachment bond and the motion to strike out defendant Lamkin's amended plea in abatement, sustained the plea, abated the bond, quashed the attachment and rendered judgment for the plaintiff for the amount of his debt against *Page 33 Lamkin for $3,787.30 and 6 per cent interest per annum from April 18, 1891, and against the plaintiff and in favor of defendants Johnson and Flournoy, the plaintiff taking nothing against them and that they recover their costs of plaintiff.
Plaintiff has appealed.
Opinion. — The first error assigned is "that the court erred in allowing defendant Lamkin to amend his plea in abatement and file a second amended plea, after motion to strike out his first amended plea had been sustained by the court and after he had answered to the merits; because the amendment was not authorized by law and came too late after answer to the merits, and because having amended the plea once and going to trial thereon and it having been stricken out on motion of the plaintiff, no further plea on that subject could have been legally made. The original and first amended pleas in abatement are not in the record. It seems, however, that the original plea was filed before Lamkin's original answer, as the answer commences: "Come defendant Lamkin, and not waiving his plea in abatement denies," etc. The order acting on the motion of plaintiff to strike out the second amended plea is in the first part of the final judgment as follows:
"On this October 19, 1894, this cause being regularly called for trial the parties plaintiff and defendant announced ready for trial on the law in the preliminary questions. The defendant, L.A.L. Lampkin, having by leave of the court filed his second amended plea in abatement to abate the attachment bond in this cause for reasons set out in said plea, the plaintiff moved the court to strike out said plea for reasons stated in said motion, which motion was by the court heard and overruled, to which action of the court plaintiff at the time in open court excepted. The plaintiff then in open court tendered a new attachment bond, signed by plaintiff and James G. Burleson, A.R. Chew and Eugene Clark as sureties, by motion asked leave of the court to substitute said new bond for and in lieu of the first and original attachment bond filed in this court, for the reasons set out in said motion to substitute, which said motion was by the court overruled, to which action of the court the plaintiff at the time in open court excepted; then came L.A.L. Lamkin and presented his second amended plea in abatement asking the court to abate the attachment bond filed in this cause, and quash plaintiff's writ of attachment and the affidavit of B.T. Palmer therewith filed, for reasons set out in said plea, which plea was by the court sustained, said bond abated and the plaintiff's attachment quashed, to which actions and rulings of the court the plaintiff at the time in open court excepted: 1st. Because said bond being sufficient in amount and conditioned as required by law and signed by a sufficient number of sureties and approved by the proper officer, said bond was a full and complete compliance with the attachment laws of this State, and there was no statutory authority for going behind and questioning the validity of an attachment bond, when said bond was prima facie good on its face. 2nd. Because said bond being prima *Page 34 facie good, evidence was necessary to overcome its validity, and no evidence was offered by defendant in support of said plea in abatement: whereupon both parties, plaintiff and defendant announced ready for trial on the merits of the case a jury being waived," etc.
The motion to strike out the second amended plea in abatement, among other reasons for the ruling asked, set up that it was filed after answer to the merits and after issue joined. It does not appear as stated in the assignment of error that the second amended plea was filed after his first amendment had been stricken out on motion of plaintiff. It does not appear but that it was filed by leave of the court. The preceding pleas upon the same subject are not before us and it does not appear that they were not amendable. The original evidently preceded the answer to the merits as the answer referred to it as not waived. Howeth Bros. v. Clark, 4 Willson's C.C., sec. 314. A defect in a plea in abatement may be cured by amendment upon leave of the court, as any other defective plea. It may be done in the county court on appeal. If plaintiff is correct that the first amended plea was stricken out on his motion, it was not error to allow defendant to amend the plea, the rule being that when demurrer is sustained to a plea in abatement the defendant may plead over. Ritter v. Hamilton, 4 Tex. 326; McDonald v. Tinnon,20 Tex. 245; Ann Berta Lodge v. Leverton, 42 Tex. 18 [42 Tex. 18]; Rev. Stats., art. 1192. The amended pleading objected to was duly sworn to. There was no error in refusing to strike it out.
2. It is next insisted by plaintiff that the court erred in refusing to allow him to substitute the new bond in attachment for the original; because the first bond was valid in form and substance, sufficient in amount, conditioned as required by law and approved by the clerk of the court, and was a full compliance with the statute of attachments, and on the objection by defendant by his plea in abatement that the sureties were non-residents of the state, it was the proper practice to allow the filing of a new bond curing and meeting the objection, and this even if the first bond was not in fact good, and especially when the defect in the bond did not appear on the face of the bond questioned. The bond objected to was in form, for the proper amount had two sureties and was approved by the clerk of the court.
In the absence of statutory authority the old bond could not be substituted by a new one, especially as the defect in the original bond existed at the time the attachment was issued. 1 Am. Eng. Encycl. Law 905, 906, 907 and 908. Drake on Attach. 146; Waples on Attach. 124, 125 and 127; Whitley v. Jackson, 1 White Willson's C.C., sec. 575; Winn v. Sloan, 1 White Willson's C.C., sec. 1104. "The plaintiff must lie on the bed he has made. He cannot substitute one surety for another as a matter of right, nor can the court confer such right when the bond was worthless ab initio by reason of the insolvency of the surety, unless such power is given by statute." Waples on Attach., 125. There is no provision of the statute of this State allowing the emendation of attachment *Page 35 bonds. If there was a defect in the bond in this case it was incurable by amendment.
3. The next assignment of error urged by appellant is to the effect that the court below erred in sustaining defendant Lamkin's second amended plea in abatement because it was not supported by any evidence, nor was any proof offered in support of the same; that the affidavit of B.T. Palmer, district clerk, attached to the plea was not evidence, and could not have been considered by the court, it being a rule of practice that all pleas in abatement, where the matters relied on are not of record, must be supported by legal evidence; and the bond for attachment being for sufficient amount, conditioned as the law directs, signed by a sufficient number of sureties, was prima facie a good bond, and could only be abated upon full and competent proof that while good on its face it was in fact insufficient; and because the bond being prima facie good in the absence of express statutory authority its validity could not be questioned, and there is no authority in this State providing for abatement of attachment bonds that are prima facie good.
We think a plea in abatement is permitted in this state to show the insufficiency of an attachment bond when it appears to be prima facie good. Donnelly v. Elser, 69 Tex. 286 [69 Tex. 286]; Nat'l Bank v. Cupp Co., 59 Tex. 270 [59 Tex. 270]; Messner v. Hutchins, 17 Tex. 597 [17 Tex. 597]; 1 Wade on Attach., secs. 109-112 and 258; Davis v. Willis, 47 Tex. 155; Anderson v. Chandler, 18 Tex. 436.
"The principal methods in use for dissolving an attachment on grounds de hors the record are the motion or rule to dissolve and the plea in abatement. Waples on Attachments, 427. We have no doubt but there may be grounds to dissolve an attachment in this state when all the proceedings are in form and regular and that the proper method of raising the question is by plea in abatement.
4. The court was not without proof that the ground of non-residence of the sureties was true. The bond was in form and for a proper amount. It was signed by the plaintiff and A.B. Lamb and W.T. Wrather as sureties. It was approved by the clerk of the District Court who issued the writ but under the following circumstances: The clerk of the county court of Henry County, State of Tennessee, certified that he was personally acquainted with S.H. Caldwell and A.B. Lamb and W.T. Wrather, and that each of the sureties were good and solvent and well worth more than the amount of the bond over all liabilities and exemptions, and that if the same were tendered to him he would accept and approve the same. This certificate was made in Henry County, Tennessee. Before the court sustained the plea in abatement, the plaintiff had filed exceptions to the same and a motion to substitute a new bond, in which motion it is stated: "Plaintiff says 'tis true said sureties, Lamb and Wrather, are residents of the State of Tennessee, but as to their having property in the State of Texas plaintiff is unable to state," etc. Attached to the plea in abatement was the affidavit of B.T. Palmer, clerk of the court, who approved the bond and issued the attachment, in *Page 36 effect that he approved the bond mainly on the ground that the sureties were solvent as shown by the certificate of the clerk of the County Court of Henry County, Tennessee, and on the statement of plaintiff's attorneys that they believed the surety, A.B. Lamb, one of the sureties on said bond, had property in Texas, and that affiant had no definite knowledge that said sureties had any property in Texas. We think affidavits may be read in support of a plea in abatement to the sufficiency of the bond. Waples on Attach., 430 to 434, inclusive. But besides the affidavit of the district clerk it was admitted by plaintiff in his motion to substitute the bond that the fact of non-residence of the sureties was true. We think the fact alone admitted to be true was sufficient to authorize the court to sustain the plea. The sureties were non-residents of the State, and it would be immaterial whether they had property in this State or not, as in a suit against them for damages for the wrongful suing out of the attachment their property could not be attached so as to give jurisdiction to the action, because it would be an unliquidated demand that would not support attachment.
5. We agree with the court below that it is and should be the policy of this State not to require its citizens to go out of our own jurisdiction to recover damages against sureties on attachment bonds, and consequently that non-resident persons are not the persons mentioned in the statute as "good and sufficient sureties" required in an attachment bond. They had as well be insolvent as non-residents of the State, so far as a suit in this State could be available against them. Our statute was intended to meet the requirements of our own jurisdiction and to provide for it, not for courts in other states, nor to compel our citizens to go out of the State to sue for damages on an attachment bond. That the insolvency of sureties on attachment bond is good ground for abating it and dissolving the attachment, see Waples on Attach., 124 to 126, 426 and 427. The right to question the validity of the bond by plea in abatement exists independent of statute, Id. 427. Suppose the clerk in an attachment suit should approve a bond that had been forged, would it be said that there must be a provision of the statute authorizing it before the creditor could show the fact under a proper plea? The bond may appear to be good, and in all respects in form conformable to the statute, yet, if from extrinsic facts it be made to appear that it furnishes no security to the debtor for wrongfully taking his property, unquestionably such facts may be shown, and the proper method of laying a predicate for the proof would be by plea in abatement. It may be said that defendant Lamkin had the right to plead in reconvention or cross suit for damages for wrongfully suing out the writ, and that therefore the sureties on the bond would be in court for such purpose, and the court could render personal judgment against them for such damages. This is not, however, the only right of the defendant. He has the right to bring an action on the bond for the wrongful issuance of the writ, and this he could not do if the sureties were not residents of the State as he could not attach their property if they had any in the State on such *Page 37 a suit. We therefore conclude that if the burden of proof was on the defendant Lamkin on his plea in abatement, the admission of plaintiff that the sureties on the attachment bond were residents of Tennessee was sufficient to sustain the plea, without showing that they had no property within the State. And we also conclude that such fact of non-residence rendered the bond insufficient as security for the writ. These being our conclusions, it becomes unnecessary for us to proceed further upon the other issues found by the trial court in favor of defendants Johnson and Flournoy, that their claim of ownership to the property levied on was superior to the claim of plaintiff under the attachment. When the attachment was dissolved because of the insufficiency of the bond, all rights under the writ failed and the court could not do more than it did do to render judgment for the plaintiff for his debt and refuse to foreclose the attachment lien. We therefore conclude that the judgment of the lower court should be affirmed and it is so ordered.
Affirmed.