Nickell v. Carter , 23 Tex. Civ. App. 570 ( 1900 )

FISHER, Chief Justice.

This is a sequestration suit which was filed in the justice court on Sunday. The affidavit was filed and the writ of sequestration was issued upon that day. The sequestration bond was not approved and filed until the following day. Motion was made in the court below to quash the sequestration proceedings because the writ of sequestration was issued before the filing of the sequestration bond. Another motion was also made that in the event the first motion should be sustained, then the cause of action should be dismissed because the suit was filed on Sunday. The trial court overruled both motions.

We are of the opinion that both motions should have been sustained. The bond is an essential part of the sequestration proceedings and the sequestration writ could not legally issue until the sequestration bond was filed and approved. The bond is as indispensable to the validity of the sequestration proceedings as the affidavit, and both must be filed before the writ could issue. The writ having issued the day before the bond was filed was unauthorized, and the court should have sustained the motion to quash. The law authorizes sequestration suits to be brought on Sunday, hut if the writ had been quashed and the sequestration proceedings dismissed, the case would have then stood as an ordinary suit, which could not have been instituted on Sunday. Therefore the court should have sustained the motion to dismiss the case.

Judgment is here rendered with instructions to the trial court to dispose of the case in accordance with this opinion.

Reversed and remanded, with instructions.