Garrett filed this suit against Kelley, Hicks, and Curry. In his petition he alleged that he leased space in the Broadway Hotel, in the city of Lubbock, Tex., from W. R. Kelley, in which to operate a hamburger stand for the sale of hamburgers, sandwiches, cold drinks, etc., with the understanding and agreement that Kelley would not allow or permit any other hamburger stand to be opened and operated upon the lots described in the leases held by Kelley; that disregarding said agreement, Kelley permitted his son and Hicks and Curry to open and operate a hamburger stand about 85 or 90 feet south from the stand of the plaintiff on a portion of said lots; also alleging that same was injurious and damaged plaintiff, etc.; praying for a writ of injunction restraining defendants from operating said hamburger stand.
The trial court ordered the issuance of a temporary writ of injunction upon the giving of bond by the plaintiff. The bond was given with the other plaintiffs in error thereon, who are joined herein with plaintiff in this appeal, as sureties. The - defendants answered and also filed a cross-action for damages.
After the case had remained on the docket for over a year, the trial court,' in the absence of the plaintiff, and, so far as the record discloses, without notice to the plaintiff of the filing of the cross-action of the defendant, proceeded to hear the case, as presented by the defendants under their answer and cross-action. Upon such hearing, the court rendered judgment, dissolving the temporary injunction, and awarding defendants damages against the plaintiff and his sureties on the injunction bond. In due time a writ of execution was issued upon said judgment in favor of the defendants and was placed in the hands of the sheriff of Lubbock county, when the plaintiff joined by the sureties, filed with the clerk of the district court his petition for writ of error, had citation served, filed supersedeas bond, and the case is now before this court for review.
The plaintiff and his sureties assign error on the action of the trial court in rendering judgment in favor of the defendants upon their cross-action for affirmative relief, without notice of the filing of said cross-action to the plaintiff, and in the absence of citation to plaintiff duly served on him. This proposition is ordinarily sound, but does not apply to a judgment taken upon cross-actions for *416damages by reason ■ of tbe illegal issuance and service of a writ of injunction.
Article 4649, Revised Civil Statutes 1925, provides as follows:
“Upon the filing of the petition and order of the judge and before the issuance of the writ of injunction the complainant shall execute and file with the clerk a bond to the adverse party, with two or more good and sufficient sureties, to be approved by such clerk in the sum fixed in the order of the judge granting the writ,, conditioned that the complainant will abide the decision which may be made therein, and that he will pay all sums of money and costs that may be made therein, and that he will pay all sums of money and costs that may be adjudged against him if the injunction be dissolved in whole or in part.”
Tbe provision that tbe plaintiff and his sureties bind themselves to “pay all sums of money and costs that may be adjudged against him” does not require service of notice of the filing of the cross-action to put the plaintiff and his sureties in court, for the plaintiff has invoked the jurisdiction of the court, both as to his own cause of action and as to any cause of action which may be asserted by the defendants.
So far as the plaintiff’s contention applies to a judgment rendered against the sureties, it has often been held that service of citation on such sureties is not necessary in order to authorize the court to render a judgment against them for such damages as ai'e shown to have been suffered by the defendants. Smith v. Wilson, 18 Tex. Civ. App. 24, 44 S. W. 556; Coates v. Caldwell, 71 Tex. 19, 8 S. W. 922, 10 Am. St. Rep. 725; Sharp v. Schmidt, 62 Tex. 263, and authorities therein cited.
If the language of the statute above quoted, which is practically followed by the obligation of the bond in this case, makes the sureties responsible for such damages without the necessity for citing them to answer the cross-action, certainly that language is also applicable to the plaintiff, and he too would be subject to the judgment of the court, without having been cited. As stated • by the San Antonio court, in the case of Heidemann v. Martinez, 173 U. W. 1166-1168, the principal on the bond could occupy no better position than the sureties. We therefore overrule this assignment.
The plaintiff assigns as error the action of the trial court in rendering judgment for the defendants for the reason that the cross-action of the defendants fails to state a cause of action. The cross-action, seeking recovery herein, is as follows:
“(10) The defendant W. R. Kelley pleads over against the plaintiff and the sureties on his injunction bond for damages by reason of the wrongful suit of the plaintiff against him, and of the wrongful issuance of the writ of injunction herein. He says such injunction was wrongfully and maliciously sued out by the plaintiff, causing him damage, and that the allegations therein against him are wholly untrue and without foundation in law or facts. As a result of said injunction, he was deprived of his rent of one hundred five dollars, due and owing by his codefendants herein. Besides he is subjected to damages in favor of his code-fendants for the reason he let and leased them, in good faith, as he had a right to, certain portions of the improvements on the lot of land described in plaintiff’s petition. It has been necessary and proper for him to employ attorneys to defend the suit brought against him by the plaintiff at a cost of one hundred ($100) dollars, which he is obligated to pay. He has been damaged in the sum of two hundred five ($205.00) dollars by reason of the suit, and he should have judgment over ag'ainst the plaintiff, and the sureties on his injunction bond, for the said sum' of two hundred five ($205.00) dollars, and all costs.
“(11) Likewise do the defendants W. A. Hicks and Leonard Curry plead over against the plaintiff for damages, by reason of the wrongful suing out of the injunction in this suit. They say said injunction was wrongfully and maliciously sued out as against them, and without foundation in law or facts; that the plaintiff knew that his said suit for injunction was wrongfully brought and he brought the same to injure and harass them, and throw them out of possession of the improvements, and to prevent them from conducting a legitimate business in the premises leased from W. R. Kelley, and as a result of said injunction they have had to close their business and sell their stock of goods and merchandise at a loss and damage to them of one hundred ($100.00) dollars. They had to stop their confectionery business, as aforesaid, and, had the suit not been brought against them, they would have earned, and were earning, as profits from their said business, the sum of ten ($10.00) dollars per day. They have lost to date seventy (70) days at ten ($10'.0O) dollars per day, making a total of seven hundred ($700.00) dollars. They have also, by reason of said suit, been compelled to employ attorneys to defend them and protect and preserve their rights, and have obligated themselyes to pay said attorneys the sum of one hundred ($100.00) dollars, making a total loss to them of nine hundred ($900.-00) dollars, for which the, plaintiff and the sureties on his injunction bond are legally liable.
“(12) Wherefore, premises considered, the defendants pray on final hearing that the plaintiff take nothing by reason of his said suit, and that the defendant W. R. Kelley have and recover of and from the plaintiff, and the sureties on his injunction bond, his damages in the sum of two.hundred five ($205.00) dollars, and that the defendants W. A. Hielrs and Leonard Curry have and recover of and from the plaintiff, and the sureties on his injunction bond, their damages in the sum of nine hundred ($900.00) dollars, for all costs of suit, and any other relief to which they may show thems.elves entitled under the facts in the case.”
It will be understood that tbe plaintiff’s petition and tbe answer of defendants set out tbe contract between tbe plaintiff and tbe defendant Kelley, tbe breach thereof by *417Kelley, and that the defendants Kelley, I-Iiclcs, and Curry are operating a rival establishment upon the above-described property. The cross-action, therefore, has the support of such other pleadings. Bourke v. Vanderlip, 22 Tex. 221, 222; International Building & Loan Ass’n v. Biering, 86 Tex. 476-485, 25 S. W. 622, 26 S. W. 39.
A plea which is sufficient to admit evidence to establish the case it seeks to make out cannot be disregarded or treated as a nullity until its legal sufficiency is questioned by special exception. Cunningham v. Wheatley, 21 Tex. 184.
Every reasonable intendment from the allegations as a whole will 'be indulged and a defective statement of the cause of action, if amendable, is not subject to general demurrer. Northwestern Nat. Ins. Co. v. Woodward, 18 Tex. Civ. App. 496, 45 S. W. 185 (writ denied).
We hold, therefore, that the cross-action states a cause of action good against a general demurrer. However, as to an item of the recovery, viz. the attorney’s fees, we hold that they are not recoverable in the suit of defendants. Carpenter v. First National Bank, 53 Tex. Civ. App. 23, 114 S. W. 904.
The discrepancy shown in the designation. of the defendant Hicks is apparently a clerical, error, which is corrected in other parts of the pleading, and such discrepancy is therefore immaterial; so, also, is the error in the dates of the issuance and service of the writ of injunction. All the other proceedings elegrly show this to be a clerical error. Hall, etc., Machine Co. v. Brown, 82 Tex. 469, 17 S. W. 715.
The judgment of the trial court will be re-' formed in order to eliminate the recovery of attorney’s fees, and, as so reformed, the judgment is affirmed.