text:
    BEAUMONT IRRIGATING CO. v. DELAUNE.
    (No. 2415.)
    (Supreme Court of Texas.
    Nov. 17, 1915.)
    1. Judgment <&wkey;G34 — Conclusiveness — Cause ojt Action.
    A judgment or decree of a court having jurisdiction over the parties and the subject-matter of the litigation is final between the parties to the suit covering the cause of action alleged.
    LEd. Note. — For other cases, see Judgment, Cent. Dig. § 1150; Dec. Dig. <S=^634.]
    2. Judgment <&wkey;713 — Conclusiveness — Matteks Which Might Have Been Adjudicated.
    Such judgment or decree is also final as to all questions involving the same cause of action and the defenses thereto which the parties to the suit might have adjudicated therein.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 1063, 1066, 1099, 1234-1237, 1239, 1241, 1247; Dec. Dig. &wkey;713.]
    3. Judgment &wkey;>731 — Res Judicata.
    In trespass to try title defendant pleaded in set-off improvements made thereon in good faith, with a statement thereof, and alleged their value to be $3,400, and prayed judgment therefor. Such plea was read, and not withdrawal or dismissed, and no evidence was offered in support of it. Judgment was rendered for defendant, but it was silent as to the improvements. The Court of Civil Appeals on appeal from the judgment reversed the same, and rendered judgment for plaintiff. Defendant’s motion for rehearing to try the issue as to its claim for improvements was denied. Held, such judgment was res judicata as to the_ claim for improvements again raised in plaintiff’s subsequent suit to recover rent up to the time of defendant’s surrender of possession.
    [Ed. Note — For other eases, see Judgment, Cent. Dig. §§ 1259, 1261; Dee. Dig. &wkey;731.]
    Certified Questions from Court of Civil Appeals, First Supreme Judicial District.
    Action by A. Delaune against the Beaumont Irrigating Company, with plea in re-eonvention. Judgment for plaintiff, and defendant appeals.
    Affirmed, and, on defendant’s motion for a new bearing, questions certified. Second question answered in the negative.
    See, also, 128 S. W. 174.
    A. D. Lipscomb, of Beaumont, for appellant. J. D-. Martin, of Alpine, for appellee.
   YANTIS, J.

This case is here on certified questions from the Court of Civil Appeals for the First District. The statement of the Court of Civil Appeals and the questions certified are as follows:

“The above ease is now pending in this court on motion for rehearing from a judgment affirming- the judgment of the trial court. We have grave doubts as to the correctness of our decision of the most important question in the case, and we deem it proper to certify the question involved to your honorable court for decision.
“The facts are as follows: In a previous case to the present one A. Delaune sued the Beaumont Irrigating Company in trespass to try title for a tract of land in Jefferson county. Among other defenses pleaded by the defendant was a plea of improvements in good faith on the land sued for, setting out a proper statement of the same and their value, alleged to be $3,-400. Defendant prayed that, if plaintiff recovered judgment for the land, it have judgment for the value of said improvements. The plea was read to the jury and was not in any way withdrawn nor dismissed, but no evidence was introduced in support of it. In that suit judgment was rendered in favor of defendant, the Beaumont Irrigating Company, for the land sued for. The judgment was silent as to the claim for improvements. Upon appeal to. this court this judgment was reversed, and judgment rendered in favor of plaintiff, A. Delaune, for the land. As the trial court, in its conclusions of fact, had found that the rents of the land up to the date of the trial in the district court was $1,950, this court also rendered judgment against the defendant for this amount as the rents to which plaintiff was entitled up to the date of the judgment of the district court, to wit, October 8, 1908. Delaune v. Beaumont Irrigating Company (Civ. App.) 128 S. W. 174. This judgment is also silent as to the claim for improvements.
“The record in this case is silent upon the matter, but an examination of the papers in the first case referred to, the trespass to try title suit, discloses that in a motion for rehearing filed in this court the Beaumont Irrigating Company, against which the judgment was rendered by this court, sought among other things to have the cause remanded in order that it might have the issue tried as to its claim for improvements.
“The irrigating company paid the amount of the judgment for rents, but did not surrender the possession of the premises until August 23, 1910. A. Delaune thereupon instituted this suit to recover rents from the date of the judgment of the district court up to the date of the surrender of the premises, alleging the amount to be $755. Among other defenses urged by defendant to this suit, it pleaded in offset and reeonvention to plaintiff’s demands the value of permanent and valuable improvements made by it-on the land, alleged to amount to $2,200. The improvements referred to in this plea are the same set up by defendant in the former suit for the land. To this plea the plaintiff answered that the matter had been adjudicated by the former judgment; the facts as to this being, as we have stated, that in the former suit the answer setting up the claim for improvements was read to the jury, and was not dismissed nor withdrawn, but no evidence was offered in support of it, and the judgment is silent as to this claim. The trial court in the present ease sustained appellee’s plea of res adjudicata to appellant’s claim to the present suit. In our decision affirming the judgment of the trial court this holding was approved. Upon this motion for rehearing one of the members of this court, dissenting from the conclusions of the majority, is of the opinion that this holding is erroneous.
“Upon these facts we respectfully certify to your honorable court the following questions:
■“First. Could the appellant, the irrigating company, in this suit for rents set off the value of the improvements made by it on the land?
“Second. Did the trial court err in holding that the judgment in the former trespass to try title suit was res adjudicata of the claim for the value of the improvements set up, as set-off or counterclaim, by appellant in this action for rents?”

We will address ourselves first to the second question certified, as an answer to this question, in the view we take of it, necessarily renders an answer to the first question immaterial.

The plea of set-off or counterclaim for valuable improvements which was entered in the trespass to try title suit was the same cause of action which is pleaded by the appellant in this suit for rent. Having placed it in issue by proper pleading in the previous suit, it would appear that the plea of res adjudicata would be a complete bar to another adjudication thereof, for it is well settled, and cannot now be controverted, that the judgment or decree of a court having jurisdiction over the parties and the subject-matter of the litigation is final between the parties to the suit covering the cause of action alleged. Such judgment or decree is also final as to all questions involving the same cause of action and the defenses thereto which the i>arties to the suit might have had adjudicated therein.

It is true that the cause of action alleged by the plaintiff, Delaune, in the trespass to try title suit was different from the one alleged by him in the suit for rents in the instant case, but the plea of set-off for valuable improvements which was made by the Beaumont Irrigating Company, defendant in said trespass to try title suit, constitutes the same cause of action in its behalf in this suit for rents which it pleaded in the trespass to try title suit. Having filed and presented its pleading in the trespass to try title suit, and not having withdrawn it, although no evidence was introduced thereon, it is presumed that the issue made by this pleading was adjudicated in the trespass to try title suit. There being no contention that the issue was withdrawn, or that the trial court refused to decide it, the plea of res adjudicata constitutes a complete defense to such claim in the instant case, notwithstanding the judgment in the trespass to try title suit is silent as to the action of the court on said plea for valuable improvements. Nor do we think the fact that the motion for rehearing by the Beaumont Irrigating Company, requesting the case to be remanded for another trial in order to afford another opportunity to make proof of the value of the improvements, would change the rule. It is true that, if the trial court had refused to decide the issue of valuable improvements, then its judgment would not be in bar of another suit covering the same issue, for the reason that the issue had not been in fact adjudicated. But it does not follow that the action of the Court of Civil Appeals in rendering the case instead of remanding it amounts to a refusal to try the issue. It does not have such legal effect. The Court of Civil Appeals probably had discretionary power to remand the case for such purpose, but it had the clear right to refuse to do so, since there was no evidence before it in support of such issue. The Beaumont Irrigating Company having refused, failed, or neglected to offer proof in support of such issue in the trial court, it was not in a position to demand that the Court of Civil Appeals order a new trial in its fa's or to afford it another opportunity to introduce evidence on the issue, when it had permitted one such opportunity to pass without offering evidence in its support. In overruling the motion for rehearing, and in thereby refusing a new trial for such purpose, the Court of Civil Appeals acted clearly within its legal rights. Hence it cannot be successfully contended that its action amounts to a refusal of the court to adjudicate the issue of valuable improvements.

Almost the identical question was before this court in the case of Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77, in which case the court said:

' “The proposition seems to be sound in principle and well supported by authority that, where the pleadings and judgment in evidence show that the pleadings upon which the trial was had put in issue plaintiff’s right to recover upon two causes of action, and the judgment awards him a recovery upon one, but is silent as to the other, such judgment is prima facie an adjudication that he was not entitled to recover upon such other cause.”

The holding in that case is conclusive of the second question certified in this case. For the reasons indicated, we answer the second question in the negative.

Since our holding upon the second question sustains the plea of res adjudicata, it is in no way necessary that we answer the first question certified.
      <@^yFor other oases see same topic and KEY-NUMBER in all Key-Numbered ¡Digests and Indexes '


source: Caselaw Access Project

author: PHILLIPS, C. J.

license: Public Domain

text:
    DAVIS, PRUNER & HOWELL v. WOODS.
    (No. 2413.)
    (Supreme Court of Texas.
    Nov. 17, 1915.)
    1. Damages <&wkey;2l6 — Personal Injuries — Prospective - Loss op Time — Instructions.
    Where, in a personal injury case, there is no direct testimony that plaintiff has fully recovered, hut is evidence that he still suffers in his general health from the effects of the injury, it is not error to give an instruction which submits prospective loss of time as an element of damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 548-555; Dee. Dig. &wkey;216J
    2. Damages <&wkey;216 — Personal Injuries — Impairment op Earning Capacity — Loss op Time — Instructions—Evioence.
    In an action for injuries resulting in amputation of plaintiff’s arm, it is not error to instruct that reasonable compensation may be allowed plaintiff “for any loss of time which he * * * will probably sustain in the.future by reason of his diminished capacity, if any, to earn money,” though the evidence shows that he has fully recovered, and where impaired capacity, as an element of damages, is not submitted independently from the element of loss of time.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 548-555; Dec. Dig. &wkey;216.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by R. M. Woods against Davis, Pruner & Howell. A judgment for plaintiff was affirmed by the Court of Civil Appeals (143 S. W. 950), and defendants bring error.
    Affirmed.
    Montgomery & Britain, of Wichita Falls, for plaintiffs in error. Wantland & Parrish and Taylor & Humphrey, all of Henrietta, and N. A. Stedman, of Austin, for defendant in error.
   PHILLIPS, C. J.

The suit of the plaintiff in the trial court, R. M. Woods, was for damages on account of an injury to his arm, resulting in its amputation below the elbow, sustained while working in a gin owned and operated by the defendants, Davis, Pruner & Howell, the present plaintiffs in error. He recovered a judgment in the sum of $2,000. The writ of error was granted on account of the charge of the court in its submission of the measure of damages, and that is the only question we find it necessary to discuss.

The injury occurred on December 12, 1908. The trial was had nearly two years later. The amputation of the plaintiff’s arm was the result of the injury. His testimony was that before the injury he could earn from $2 | to $3 a day in the oil field at Petrolia, hut | since he had just barely been making a living ; that prior to the injury Ms health was good and his weight 140 pounds, hut his physical condition had not been as good since, and his weight at the time of the trial was 125 pounds, and that he could not do anything that he was able to do before losing Ms hand; that the first work he did after being injured was in a hotel in Petrolia, about the 1st of February, 1909; that he worked there about a month, after which he did nothing until August or September; that he was a partner in a bathhouse there until the 1st of March, 1910, when he went into the fruit and vegetable business, in which he was engaged at the time of the trial. He further testified to the pain he had suffered, and that the arm still hurt him, going, sometimes, as long as three weeks without paining him, and then hurting for two or three days. It is to be gained from bis testimony that before tbe injury he was steadily employed.

The charge of the court on the measure of damages reads:

“If you find a verdict for the plaintiff, in estimating Ms damages (if any) you may take into consideration the following matters, if they have all been proven, and if they have not all been proven, you may take into consideration such of them as have been proven, if any:
“(a) Such a sum of money, if paid now, as will reasonably compensate plaintiff for any loss of time which he may have sustained in the past and will probably sustain in the future by reason of his diminished capacity, if any, to earn money.
“(b) Such a sum of money, if paid now, as will reasonably compensate plaintiff for any pain of body or mind which he has sustained in the past, if any, by reason of his injuries, if any.”

The complaint made of the charge is its submission of prospective loss of time as. an element of damages. It is urged that the evidence established the plaintiff’s complete recovery from the injury, and that he had since been at work at various times and over an extended- period; wherefore no inference that he might lose any time after the trial was warranted; and accordingly, in respect to any loss of future earnings, only damages resulting from impaired capacity to labor as a consequence of the injury were recoverable.

We are not prepared to say that such was the force of the evidence, precluding all reasonable probability of there being no time in the future when the plaintiff would be unable to work on account of his injury, as distinguished from simply being impaired in Ms capacity to work. There was no direct testimony that he had fully recovered from the injury and its effects, and such is not necessarily inferable from the positive evidence. He testified that at the time of the trial Ms arm still hurt him for days at a time. From his statement concerning his general physical condition before and since the injury, if credited, the belief would have been warranted that he still suffered in his general health from its effects. With this in the proof, though he testified to having, for a month’s time, done some work, beginning in February after the accident in the preceding December, but then going until August or September without doing anything, as it might reasonably be concluded, because either unable to work, or unable to obtain such work as a man in his condition could perform, it can hardly be said that his complete recovery from the injury at the time of the trial was conclusively shown, and that there could be no warrant for a finding that he would lose any time in the future on account of it.

But, if it be granted that his complete recovery was shown, the charge was not erroneous. Neither prospective loss of time, nor impaired capacity for labor was submitted to the jury as a distinct element of the recoverable damages, though, from the nature of the plaintiff’s injury, there could be no question of his capacity for labor being permanently impaired. In these particulars the charge permitted the allowance of compensation only ‘for such loss of time as the plaintiff would probably sustain in the future by reason of his diminished capacity, if any, to earn money.’.

In Houston City Street Railway Company v. Reichart, 87 Tex. 539, 29 S. W. 1940, it was said that, in a ease where the plaintiff had at the time of the trial recovered entirely from his injury, loss of time which might subsequently occur “would result from diminished capacity for labor,” and ought to be included in it. That was a case where the plaintiff had at the time of the trial fully recovered from the injury, and in which the charge on the measure of damages submitted both the element of loss of time in the future and that of impaired capacity. Assuming that the evidence established here the complete recovery of the plaintiff from his injury, and that the element of loss of time occurring after the trial would have been included in that of impaired capacity had the latter been distinctly submitted, was it erroneous to charge, with impaired capacity not submitted, that allowance might be made, not unquali-fiedly for such loss of time as the plaintiff would probably sustain in the future, but for such loss of time as he would probably SO sustain “by reason of his diminished capacity to earn money?” It would seem not, if in such a case, as held in Street Railway Company v. Reichart, the time he would probably so lose “would result from diminished capacity to labor.” That opinion recognizes, in other words, that in such a case time may be lost in the future, not independently of impaired capacity for labor, but as the result of it, in the sense that the reduction of the value of a man’s working time by lessening his earning power, thereby denying him the full benefit of it, works a loss of a portion of such time. Considered in this light, the charge here was not technically erroneous; for, as already noted, it limited any recovery for loss of time in the future to such loss only as might occur by reason of the impairment of earning capacity. It was favorable to the plaintiffs in error in its effect, rather than prejudicial to them.

In cases where there is no probability that time will be lost in the future in the ordinary sense, but there will be diminished capacity for labor, it is preferable that impaired capacity, as an element of the damages, be submitted independently and without qualification. In such instances' it is entitled to be considered as an independent element of the damages, and will include any possible loss of time in the future that it could be reckoned might result from impairment of earning capacity, rendering unnecessary any reference to future loss of time.

The judgments of the district court and the Court of Civil Appeals are affirmed.
      &wkey;jFor other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    AMERICAN SURETY CO. OF NEW YORK v. STEBBINS, LAWSON & SPRAGGINS CO.
    (No. 2423.)
    (Supreme Court of Texas.
    Nov. 24, 1915.)
    1. Appearance <&wkey;>8 — Necessity of Service.
    Under Rev. St. 1911, art. 258 providing, relative to attachments, that defendant may re-plevy the property attached by giving a bond conditioned that, should he be condemned in the action, he shall satisfy the judgment or pay the estimated value of the property, with interest, and article 1885, providing that no judgment shall in any case be rendered against any defendant, unless upon service or acceptance or waiver of process, or upon an appearance by the defendant as prescribed in that chapter, except where otherwise expressly provided by law, the execution and filing of a replevy bond is not such an appearance by the defendant as authorizes judgment by default against it and its surety, without the service of process personally or by publication, since the levy under the writ of attachment is not notice of the cause of action on which judgment is sought, and the substitution of the bond for the property cannot have that effect.
    TEd. .Note. — For other cases, see Appearance, Cent. Dig. §§ 23-41; Dec. Dig. &wkey;>8.]
    2. Attachment &wkey;>343 — Bond — Rendition of Judgment — Jurisdiction.
    Rev. St. 1911, art. 1843, provides that the surety upon any contract may be sued without previously or at the same time suing the principal obligor when he resides beyond the limits of the state, or cannot be reached by the ordinary process of law, or when his residence is unknown and cannot be ascertained by reasonable diligence, or when he is dead, or actually or notoriously insolvent. Held that, while it would seem that the court’s right to subject attached property to the judgment in virtue of its seizure renders equally clear its authority to proceed against a replevy bond to the extent of its value, even if this results in the rendition of a personal judgment on the bond against a nonresident, if there is any doubt as to this, there can be no doubt as to the right to render judgment against the sureties and thus enforce the bond.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1233, 1235-1237; Dec. Dig. &wkey; 343.]

      Certified question from Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by the Stebbins, Lawson & Sprag-gins Company against the Bray Company, in which a replevy bond was executed, with the American Surety Company of New York as surety. Judgment for plaintiff, and the Surety Company brought error in the Court of Civil Appeals, Fifth District, which certified a question to the Supreme Court.
    Question answered.
    Lively, Nelms & Adams, of Dallas, for plaintiff in error. Saner & Saner and J. Robert O’Connor, all of Dallas, for defendant in error.
   PHILLIPS, C. J.

The honorable Court of Civil Appeals has included in its certificate the following statement of the case, upon which the certified question is submitted:

“This suit was instituted by defendants in error, Stebbins, Lawson & Spraggins Company, against the Bray Company in the county court of Dallas county at law on July 19, 1910, on a sworn account for $730.86, with interest thereon at the rate of 6 per cent, per annum from May 24, 1910. On the same day a writ of attachment was issued by the county clerk of Dallas county against the Bray Company^ and on July 19, 1910, levied on some personal property of said Bray Company. On August 5, 1910, said Bray Company replevied the property attached bj' giving replevy bond to the sheriff, with the plaintiff in error, the American Surety Company of New York, as surety on said replevin bond. On August 9, 1911, citation in the original suit of Stebbins, Lawson & Spraggins Company v. Bray Company was issued against Bray Brothers, and on said citation the sheriff of Dallas county made the following return:
“ ‘Sheriff’s Return. Came to hand on the 10th day of August, A. D. 1910. After search I found that Bray Brothers had all gone to Kansas City to reside. There was one of them here the day of issuance, but he had moved stock of goods and I was unable to find them. A. L. Ledbetter, Sheriff of Dallas County, by Joe Brown, Deputy.’
“The defendant, Bray Company, a corporation, alleged to have its domicile in Dallas county, Tex., made no appearance in the trial court, the county court of Dallas county at law, and filed no answer, and did nothing that could be considered an appearance, unless the filing of the replevy bond is entering an appearance. The judgment recites the jurisdiction of the court over the defendant in the following terms:
“ ‘Stebbins, Lawson & Spraggins Company v. Bray Company. No. 16812. Entered Nunc pro Tunc as of Nov. 1, 1910. This day came the plaintiff by its attorney, and it appearing to the court that the defendant was not served with citation in this case, but it further appearing that writ of attachment in this case was issued by plaintiff, and that said writ of attachment was served on defendant, who thereupon filed a replevy bond, and it further appearing that the case has on this day reached a regular call, and the defendant having failed to appear and answer in his behalf, but wholly made default, and the court is of the opinion that the giving of the aforesaid replevy bond by defendant is such an appearance as in the absence of an answer by the defendant as will warrant judgment by default against said defendant, wherefore this court is of the opinion that the said Stebbins, Lawson & Spraggins Company ought to have and recover against the said Bray Brothers, defendant, its damages in the premises.’ *
“On November 1, 1910, the court rendered judgment against the defendant, Bray Company, under the name of ‘Bray Brothers,’ said names being used in the record interchangeably, and being one and the same corporation, for the amount sued for, and rendered judgment against the American Surety Company of New York, plaintiff in error herein, as sureties on the re-plevy bond theretofore filed by the said Bray Company. From this judgment the American Surety Company of New York sued out its writ of error to this court on June 8, 1911. Super-sedeas bond was by plaintiff in error presented to and approved by the court and filed June 8, 1911.”

It is added by the court that it is in some doubt as to the authority of the trial court to render judgment by default against the Bray Company and the sureties upon the replevy bond, and therefore the following question is submitted:

“Was the execution and filing of the replevy bond referred to by the Bray Company with the plaintiff in error, the American Surety Company of New York, as surety, such an appearance in the suit on the part of the Bray Company as authorized judgment by default against said company and its surety on said replevy bond?”

We think the question should be answered in the negative. There has never been an authoritative holding in this state that the mere filing of a replevy bond constitutes an appearance on the part of the defendant. There are two decisions holding that it does not amount to an appearance, one by the Court of Appeals, Wells v. Ames Iron Works, 3 Willson, Civ. Cas. Ct. App. § 297, and the other by the Court of Civil Appeals for the Third District, Yett v. Green, 39 Tex. Civ. App. 184, 86 S. W. 787. Wells v. Ames Iron Works was an attachment suit, and the opinion was rendered in 1887, under the Revised Statutes of 1879, the provisions of which in respect to attachments were the same as those contained in chapter 1 of title 11 of the present statutes, with three exceptions which have no bearing upon this subject. Yett v. Green was a garnishment suit; but, as related to this question, the effect of the filing of such a bond in a suit of that character is not to be distinguished from the filing of a like bond in an attachment suit. It was likewise so announced in Kennedy v. Morrison, 31 Tex. 207; and such, we believe, has been the generally recognized rule in the practice.

Our statutes at one time provided two methods for a defendant’s obtaining the release of attached property — one by the filing of a replevy bond conditioned for the return of the property to satisfy the judgment (Paschal’s Digest, art. 150); and the other by giving a bail bond, denominated “special bail,” conditioned for the payment of the debt and interest (Id., art. 152). It was expressly provided in the latter article that the giving of special bail should be deemed an appearance. The distinction between the two classes of bonds was emphasized in Kennedy v. Morrison. There special bail had been given, and it was accordingly held that an appearance Bad been entered, it being stated in the same connection:

“Had he [the defendant] simply replevied the property, he would not necessarily have, ipso facto, acknowledged service of the petition.”

The judicial attachment, as distinguished from the ordinary original attachment, was also at one time a feature of our law, whereby, if a defendant could not be found in the county, the plaintiff might sue out a writ of attachment to be levied on his property. Paschal’s Digest, art. 139. That article provided that if a levy should be made under the writ, and the defendant should fail to appear and plead within the time permitted by law, the plaintiff should be entitled to judgment as in ordinary suits. In a number of cases, Briggs v. Smith, 13 Tex. 269, Gray v. Smith, 17 Tex. 389, and Walker v. Birdwell, 21 Tex. 93, such a levy, because of the terms of the article, was held equivalent to notice by citation, notwithstanding a further provision of the attachment law th'en in force, article 156, that in attachment suits no judgment should be rendered without service in the ordinary mode or by publication.

Neither special bail as a means of releasing property held under judicial seizure, nor the judicial attachment as a method of service upon a defendant, are now known to our law. But it is argued by counsel for the defendants in error that in the adoption of the present statutes, and the repeal of those former articles, the Legislature intended that an original attachment sued out on the ground of nonresidence of the defendant should still operate as a judicial attachment, with the same force as a substitute for service as formerly, and that the filing of a re-plevy bond should have the same effect as an appearance by the defendant as the giving of special bail, because of the similarity of the condition required to that of the bail bond.

Our present statutes in no wise provide for any such consequence, and an intention on the part of the Legislature just the contrary to that asserted is in our opinion to be presumed. In the attachment of property of nonresidents, notice of the suit in the mode prescribed by statute is, in the absence of an appearance, as indispensable an element of jurisdiction as seizure of the property. Under the laws of this state the levy upon property under a writ of attachment is not deemed notice of the cause of action on which judgment is sought; personal service, or notice by publication, is required. Stewart v. Anderson, 70 Tex. 590, 8 S. W. 295. This question, both as related to nonresident and resident debtors, is well settled, and there can be no occasion for its revival in this state.

The fact that former article 156, Baschal’s Digest, declaring that no judgment should be rendered in attachment suits unless the citation or summons had been served in the ordinary mode, or by publication in the manner provided by law, no longer is a distinct provision of the attachment laws, is of no influence. Such is equally the declaration of present article 1885, a part of the act of 1848, which reads:

“No judgment shall, in any case, be rendered against any defendant unless upon service, or acceptance, or waiver of process, or upon an appearance by the defendant, as prescribed in this chapter, except where otherwise expressly provided by law.”

See Milburn v. Smith, 11 Tex. Civ. App. 678, 33 S. W. 910.

The condition of the bail bond provided for in article 150, Paschal’s Digest as already noted, was for the payment of the debt and interest, and the giving of such a bond was, by express terms, made an appearance. A replevy bond under present article 258 is not required to be so conditioned. The obligation which it carries is alternative; that is, either to satisfy the judgment, or pay the value of the property seized, with legal interest from the date of the bond. It would not be contended that more than the value of the property with legal interest could be recovered upon the bond if the judgment for the debt exceeded such value in amount. The bond is security for the debt only as and to the extent that the attached property was security for it under its seizure, with interest added. It simply takes the place of the property. Kildare Lumber Company v. Bank, 91 Tex. 95, 41 S. W. 64.

In some other jurisdictions it is held that the filing of a replevy bond is an appearance by the defendant in the suit, just as it has also been elsewhere held that in the attachment of property of nonresidents no notice other than its mere seizure is essential to the jurisdiction of the court — a view apparently indorsed in Drake on Attachments, § 437, but repudiated in Stewart v. Anderson. But it is essentially a subject of statutory regulation. We have no such statutory provision ; and in its absence such effect, in our opinion, should not be given to the mere filing of such a bond.

The purpose of a replevy bond, its nature under our statute, and the relation of the property seized to the suit, for which the bond merely becomes the substitute, reasonably demonstrate that it is not to be treated, in itself, as an appearance in the suit. In cases of ordinary attachment the suit is upon a debt. The property is seized to satisfy the debt, and not because of the existence of any claim against the property itself. The issue in the suit is solely with respect to the debt. The property seized is in no way related to such issue. It is subjected to the attachment only because it is the defendant’s property, and the judgment is paid out of it because of its having been brought within the custody of the law as security for such payment. The purpose of the replevy bond is to provide a remedy for the defendant, whereby he may procure the release of his property by placing the bond in the court in its stead. In giving the bond he does nothing in any wise related to the issue in the suit, or which has in any respect to do with the jurisdiction of the court over the cause of action, or the exercise of its jurisdiction. He invokes no action of the court. He makes no move in relation to the cause of action. He does nothing which can in any way affect the cause of action. He merely places in the court that which the law says to him he may place there in lieu of his property. If the seizure of his property does not subject him to the court’s jurisdiction, it is difficult to attach that consequence to an act, in no way involving any issue in the case or its trial, which the law extends to him as a remedy for the release of his property. The right given by the statute to have his property restored by giving the bond is for the benefit of the defendant;1 and its exercise, wholly unrelated as it is to the cause of action or its determination, should in reason entail no result to his disadvantage which the law does not expressly declare.

The liability of the defendant on the bond is not to be confused with the liability sought to be adjudged against him on the cause of action. The right to subject the property to the payment of the debt under the attachment seizure being no part of the cause of action, the undertaking of the bond, the substitute for the property, becomes no part of it. The giving of the bond is an acknowledgment of liability under the bond, but it is a liability distinct from that of the cause of action. It is acknowledged only upon the condition of the liability under the latter being established, and is enforceable only in that event. It can hardly be said that an agreement of an obligor in a bond of this nature to be answerable upon it, in the event he is cast upon a cause of action of which the bond is in no sense a part, necessarily indicates his acquiescence in the right of the court to subject him to the trial of such cause of action, or an intention to submit himself to its trial. The office of the bond under the statute is foreign to that of a waiver of any right which the defendant may have in relation to the cause of action asserted against him, and there should not be imposed upon the right to file it the consequence of such a waiver.

The fact that the sureties upon a replevy bond are subject to a judgment upon the bond without service of citation, as is generally held, furnishes no analogy in the determination of the question.- The liability which is adjudged against them where the defendant is condemned in the suit is upon the bond, and not upon the plaintiff’s cause of action. They acknowledge such liability, conditioned upon the defendant being so condemned, when they execute the bond. There could be no reason for citation to them in respect to a liability which, in the execution of the bond, they agree the court may adjudge. They are answerable, without the necessity of any service, because the statute declares that judgment shall be rendered against them on the bond, if the defendant is adjudged liable on the cause of action. There would equally be no necessity for citation to the defendant if his liability upon the bond were the issue he is called upon to meet. But that is not the issue, or any part of the issue, which the court determines in the suit. The liability upon the bond does not become an issue. It exists as a matter of law, once the defendant’s liability on the cause of action is determined.

It is frequently stated in the cases that, where property is attached and the defendant replevies it, the suit loses its character as an action in rem and proceeds as one in personam. This is true as affects the recovery on the bond. It is urged that, unless the filing of a replevy bond be given the force of an appearance by the defendant, a non-resident debtor, simply by replevying his attached property, may defeat the power of the court to subject it to the judgment, since no personal judgment may be validly rendered against a nonresident. If this were true, it would not for that reason warrant a holding that the filing of such bond is an appearance; for, if the law were lame in this particular, it would be a matter for correction at the hands of the Legislature, rather than the courts. The question is not to be determined by the effect of its decision upon any particular class of eases. It is larger in its bearing than simply its relation to nonresident debtors. Our view is that, in a case of the attachment of the property of a nonresident, the right of the court to subject the property to the judgment in virtue of its seizure renders equally clear its authority to proceed against the bond as the equivalent of the property, to the extent of its value. If the result is the rendition of a personal judgment on the bond against a nonresident, it is in our opinion lawfully rendered, because of the undoubted right of the court under the statute, unaffected by any question concerning the residence of the defendant, to deal with the bondi as it would with the property, and enforce it as the substitute for the property.

It is unnecessary to determine this question. If there is any doubt as to the authority of the court to render judgment on the bond against a nonresident defendant, there can be none as to its right in such a case to render judgment against the sureties and thus enforce the bond. Revised Statutes, art. 1843.
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