Dunn v. Claunch

Opinion of the court by

Burwell, J.:

This is an action to recover on a forthcoming bond given in an attachment suit. The plaintiffs recovered judgment and the attachment was sustained, and it is alleged in the petition in this case that when the bond was executed by the defendant and approved by the sheriff, the attached property was delivered to the defendant, J: F. Dunn, who was the attachment debtor, and by him removed to the state” of Texas, and that the sheriff to whom the order of sgle was issued returned the same with the endorsement thereon “no property found,” and that the defendants have failed to surrender the attached property to answer to the judgment, although due and legal demand was made for the same.

The defendants filed an unverified general' denial. Judgment was rendered by the court in favor of the plaintiffs on the pleadings, from which action of the court the makers of the bond appeal; but the appellees contend that this court cannot review the action of the lower court, because no motion for a new trial was filed. No evidence was introduced on the trial and, in our opinion, it was not necessary to file a motion for a new trial. The error, if any, appears from the judgment roll. The trial court evidently had in mind the rule that the execution of a written instrument must be denied under oath, but it also overlooked the fact that, admitting the execution of the bond, the general denial states a good defense, in that.it denies that the property was ever delivered to Dunn when the bond was given. Tt denies that Dunn removed the property out of the Territory, or that he failed to surrender it to answer to the judgment. The defendants were entitled to a trial on the pleadings filed, and the burden was on the plaintiff to establish the necessary allegations of the petition by evidence, except the execution of the bond.

The judgment of the lower court is hereby reversed, and a new trial granted at the cost of the appellees, and the lower court is directed to proceéd in conformity with the views herein expressed.

Gillette, J., who presided in the court below, not sitting; ' all the other Justices concurring.