Morris & Morris v. Files , 40 Tex. 374 ( 1874 )

Walker, J.

This was an action brought in the District Court to recover on the breach of a contract for de-. livery of a large quantity of lumber.

An attachment was sued out and levied on the sawmill, fixtures, and about twenty thousand feet of lumber, belonging to "the plaintiffs in error.

The defendants below claim damages for the wrongful and malicious suing out of the attachment, and also plead by way of set-off.

The cause coming on to trial, a motion was made by defendants on affidavit for continuance; this motion was overruled, and the judgment of the court is assigned for error.

The defendants proposed to prove the wrongful suing out of the attachment, to which the plaintiff objected on .the ground that the plea in reconvention was not founded ' on the bond. The objection was sustained by the court, and an exception taken.

The defendant offered to read the bond in evidence, which was objected to, and the objection sustained, and exception taken. The plaintiff recovered judgment. A motion was made for a new trial, and overruled. The case is brought to this court on a writ of error.

We think there was error in overruling a motion for continuance; there was also error in ruling out the evidence; and for these errors the judgment of the District Court is reversed and the cause remanded.

Reversed and remanded.

Opinion rendered January 13, 1873.

A rehearing was granted.