The appellant, Griswoia, a real estate broker, suea the appellee Tarbell February 7, 1919, to recover the sum of $3,000, allegea to be Oue him as commissions for procuring a purchaser for a certain oil lease. The cause was numberea 1473 on the aocket of the aistrict court of Wichita county. Thereafter, on February 10th, the appellant suea out a writ of-garnishment against the National Bank of Commerce of Wichita Falls, alleging that saia bank was inaebtea to Tarbell ana haa effects belonging to Tarbell in its hanOs. This cause was numberea 1474 on the aocket of saia court. Thereafter, on February 25th, Tarbell filea his re-' plevy bona with James Haslitt, Frank Straub, Van McPhail, ana C. W. Reia, as sureties, which was approvea by the clerk. These suits were not tried at the March term, 1919, but -were continued by consent of parties from term to term until January 20, 1921, at which time the original suit was tried, resulting in a judgment for the appellant, Gris-wold, against Tarbell in the sum of $3,356, with, interest and costs of suit. On January 22, 1921, Tarbell filed his motion for new trial in said cause, which was overruled March 4, 1921. After the court had rendered judgment in the principal suit on January 20, 1921, the garnishment suit was tried. No objections had been made to the application, bond, and writ of garnishment, and the court rendered judgment against the garnishee bank for $3,048, providing, however, that no execution should issue against said bank, and at the same time the court rendered a judgment on the replevy bond for a like amount against all of the appellees. Thereafter, on February 1, 1921, 11 days after the judgments were rendered in the two cases, the appellee Tarbell and the sureties on his replevy bond filed a motion in the garnishment suit, asking that the judgment be vacated and set aside, and that the writ of garnishment be quashed and held for naught. They abandoned all the grounds set up in their motion except the following:
“(1) The application for writ of garnishment filed in this cause is not in compliance with the statute and is void in that the jurat of the district clerk, who took the affidavit of the plaintiff in said application, is not attested by the seal of his office.
“(2) The writ of garnishment issued by this court on the application above referred to is not in compliance with the statutes of this state, and is insufficient and void in that it is returnable ‘on the —:— day of March, 1919,’ and is not returnable for any particular day in March, 1919, as required under the statute and decisions of this state.
“(3) The garnishee and the sureties on said replevy bond further move the court to set aside the said judgment and to vacate the same for the reason that the same is void in that it allows a recovery in favor of the plaintiff against said sureties for costs in the garnishment proceeding.”
This motion was sustained by the order of the court entered February 28, 1921. Both Tarbell and the bank filed answers at the first term of the court after the suit was instituted and the writ of garnishment issued.
The first contention to be noticed is with reference to the sufficiency of the writ in that it is not made returnable for any particular day in the month of March. V. S. O. S., art. 274, provides that, when the suit has been filed, together with a bond, the clerk “shall * * * issue a writ of garnishment, directed to the sheriff or any constable of the county where the garnishee is alleged to reside or be, commanding him forthwith to summon the garnishee to appear before the court out of which the same is issued, on the first day of the ensuing term thereof, to answer upon oath,” etc. The writ is defective in that it does not summon the garnishee to appear “on the first day of the ensuing term.” Appellant’s contention is that the defendants and the garnishee have waived the defect in the writ by appearing and answering and failing for nearly two years to object and in not objecting to the defective proceedings until after the trial and judgment in both cases. It is further insisted that Tarbell and his associates are estopped by their act in replevying the property and by failing to file an answer in the garnishment suit and then and there attacking the defective writ. V. S. O. S. art. 279, provides that the defendant may replevy the fund by giving a bond “conditioned for the payment of any judgment that may be rendered against the said garnishee,” and further provides that, when he has so replevied the fund, he may make any defense which the garnishee could make. After the bond is filed the garnishee is but a nominal party. The bond takes the place of the debt garnished, and nd judgment awarding execution can be rendered against him. Osceola Mercantile Co. v. Nabors (Tex. Civ. App.) 221 S. W. 991. As said in Modern Dairy & Creamery Co. v. Blanke & Hauk Supply Co. (Tex. Civ. App.) 116 S. W. 154:
“The provision that the defendant giving the replevy bond may make any defense that the garnishee might make seems to contemplate the elimination of the latter from the suit. By the execution of the bond the defendant takes possession of the funds or property held by the garnishee, and no further liability could or should attach to the latter.”
*326The decision in Gilbert Booh Co. v. Pye, 43 Tex. Civ. App. 183, 95 S. W. 8, is not applicable, to this case, because there no service upon the. defendant, the Gilbert Booh Company, was obtained, and it filed no reple-vy bond. No personal judgment was or could be rendered against it, and the question of the waiver of defects in the writ was not presented. The objections urged to the proceedings by the appellee’s motion to set aside the judgment in this case did not I>ertain to matters affecting the jurisdiction, and the defects could therefore be waived by appearance. It was held in Seinsheimer v. Flanagan, 17 Tex. Civ. App. 427, 44 S. W. 30, that, since a defendant who had replevied could mahe any defense which the garnishee could mahe in the trial court, he could not be heard on.appeal to urge objections to the affidavit and the sheriff’s return. For the same reason he should not be heard, after judgment rendered and motion for new trial has been overruled, to insist that the proceedings werq defective, provided such defect did not go to the question of jurisdiction. We think when Tarbell filed the replevy bond it had the effect of entering his appearance in the garnishment suit and was such general appearance as waived the defects complained of in his motion. 4 C. J. 1331, § 25; Bishop-Babcock-Becker Co. v. Hyde, 61 Old. 250, 161 Pac. 172; Roethler v. Cummings, 84 Or. 442, 165 Pac. 355; Moore v. Packer, 174 N. C. 665, 94 S. E. 449, L. R. A. 1918B, 493; Crickett S. S. Co. v. Parry (C. C. A.) 263 Fed. 523.
A delay of two years before objecting to defects in garnishment proceedings should, as a general rule, be held to be a waiver. Wallace v. First National Bank, 95 Tex. 103, 65 S. W. 180. In Tinsley v. Ardrey, 26 Tex. Civ. App. 561, 564, 64 8. W. 803, 805, the court said:
“The statute seems to have been complied with literally by the appellant, the owner of the debt garnished. It is held that, when this statute has been complied with, the garnishee ceases to be the real party to the proceedings, but remains a nominal party, for the sole purpose of determining whether or not the effects in his hands are subject to the writ. The defendant and the sureties upon his replevin bond are held to be the real parties to the proceeding, and the statute provides that such defendant may make any defense which the defendant in garnishment could make in such suit. Rev. St. 1895, art. 225 [V. S. C. S. art. 279]; Seinsheimer v. Flanagan (Tex. Civ. App.) 44 S. W. 30; Plowman v. Easton (Tex. Civ. App.) 39 S. W. 171; City of Dallas v. Electric Company (Tex. Sup.) 18 S. W. 553.
“By force of the statute, upon the approval and filing of a replevin bond, such bond takes the place of the debt garnished. From that time plaintiff in garnishment proceeds against the bondsmen.”
The next contention to be considered is that the failure of the clerk before whom the plaintiff made the affidavit for garnishment to authenticate his signature by his official seal rendered the affidavit and application void. We think this is merely a formal defect which was waived by the failure of the appellee to except to it on that ground. Collin County School Trustees v. Stiff (Tex. Civ. App.) 190 S. W. 216; Texas Co. v. Dunn (Tex. Civ. App.) 219 S. W. 300; St. Louis S. F. & T. R. Co. v. Wall (Tex. Civ. App.) 165 S. W. 527; Bower’s Law of Waiver, 380-384; Cartwright v. Chabert, 3 Tex. 261, 49 Am. Rep. 742. But, if it should be held that the failure of appellee to except to it is not a waiver, still the defect has been waived by reason of the same facts which we have held to be a waiver of the defects of the writ.
The costs should not have been taxed against the sureties upon the replevin bond. Y. S. C. S. art. 293.
The judgment is reversed, and the causo remanded.