Ford v. Johnston , 184 S.W. 303 ( 1916 )

We are of opinion there is no error in the judgment. It is attacked on the ground, mainly, that it did not appear from the pleadings and the testimony that the note had been transferred by John Johnston, the payee named therein, to appellee Edward Johnston, and that the latter had acquired it bona fide and for value. In view of the pleadings on the part of appellant, had the suit been by Edward Johnston as the transferee of the note, it would have been immaterial to his right to recover on it whether he acquired it bona fide and for value or not. Nor would it have been necessary for him to have known that the assignment to him was evidenced by a written instrument of any kind or by an indorsement on the note. A verbal assignment thereof would have entitled him to sue on the note. Article 582, Vernon's Statutes; Bank v. Berrott,23 Tex. Civ. App. 662, 57 S.W. 340; Word v. Elwood, 90 Tex. 130,37 S.W. 414; O'Connell v. Rugely, 48 Tex. Civ. App. 456, 107 S.W. 151. But the suit was not by appellee Johnston as an assignee. He claimed a right to recover on the note as the payee, and alleged and proved that it was made payable to the order of John Johnston, his father, instead of to himself, and on January 15, 1911, instead of November 15, 1911, as the result of a mutual mistake on the part of his agent, said John Johnston, and appellant. The nature of the suit being as stated, the contentions of appellant based on its being of a different nature are untenable and must be overruled.

The contentions based on the action of the court below in overruling appellant's motion to abate the writ of attachment cannot be sustained. The allegations in the affidavit, if true, entitled appellee Johnston to the writ. If they were not true, the fact that they were not might have entitled appellant to damages, but did not entitle him to judgment abating the writ. Dwyer v. Testard, 65 Tex. 432. For, as said by the Supreme Court in the case cited:

"The validity of the writ depends, not upon the truth of the facts stated in the affidavit, but upon the fact that they are so stated. The bond protects the defendant. The injury done him is compensated in the damage he recovers. The plaintiff, in the terms prescribed by law, in the bond, has contracted with the defendant for his remedy. * * * Ever since the decision of Cloud v. Smith, 1 Tex. 611, it has been the practice to give the plaintiff the benefit of his lien, and leave the defendant to his remedy on the bond."

Whether appellant was entitled to an abatement of the writ on proof that the sureties on the bond did not own property subject to execution sufficient to satisfy it, or not, need not be determined, as such proof was not made. On the contrary, the testimony heard on that issue was sufficient to support a finding that they did own enough of such property to make them "good and sufficient sureties" within the meaning of the statute.

The judgment is affirmed.