
    Thomas Ryan v. Goldfrank, Frank & Co.
    (Case No. 1476.)
    1. Practice — Attachment.—The writ of attachment and the officer’s return thereon should always, in attachment proceedings, constitute a part of the record on appeal or 'writ of error to the supreme court.
    2. Attachment — Affidavit of claimant.—When the claimant of property seized by attachment files as such claimant the statutory bond, and at the same time makes written oath that his claim is made in good faith, the absence of the jurat, which through inadvertence was not attached to the affidavit, will not vitiate the proceedings if cured in time by amendment.
    3. Case distinguished.—This case distinguished from Carter v. Carter, 36 Tex., 693.
    4. Cases approved — Intervention.—The doctrine announced in Pool v. Sandford, 52 Tex., 621, and' Rodrigues v. Trevino, 54 Tex., 198, reaffirmed. The proper remedy for one whose property is seized for the debt of another is not by intervention, but by filing a claimant’s bond under the statute or pursuing the officer who made the levy in an action of trespass.
    5. Cases apprjyed.— Sims v. Redding, 20 Tex., 388, and Arnold v. Kreissler, 23 Tex., 581, approved.
    Appeal from Webb. Tried below before the Hon. John 0. Bussell.
    The opinion states the case.
    
      McLane & Atlee, for appellants.
    
      Tarleton & Boone, W. Showalter and Mason & Davidson, for appellees.
    I. “Whenever any sheriff, or other lawful officer, shall levy a writ of execution, sequestration, attachment, or other like writ, upon any personal property, and such property, or any part thereof, shall be claimed by any person who is not a party to such writ, such person, or his agent or attorney, may make oath in writing, before any officer authorized to administer oaths, that such claim is made in good faith, and present such oath in writing to the officer who made such levy.” R. S., art. 4822. “ He shall also execute and deliver to the officer who made such levy his bond, with two or more sureties, etc., payable to the plaintiff in such writ, for an amount equal to double the value of the property so claimed, to be assessed by such officer.” R. S., art. 4823. “It shall be the duty-of such officer, receiving such oath and bond, to deliver the property so claimed to the person so claiming it.” R. S., art. 4825.
    II. The trial of the right of property being a statutory remedy and a departure from the common law, therefore all the requirements of the statutes must be complied with by the claimant to entitle him to the remedy. “ A claimant of property which has been levied upon as the property of another cannot assert his title to it by simple unsworn proceeding. He must proceed according to the statutes, making oath in writing to his claim of the property, and by executing bond as prescribed in the article.” Carter v. Carter, 36 Tex., 693.
    III. Appellant’s first assignment of errors does not specifically point out the alleged error complained of, and under the rules of this court should not be considered. Rules 21 and 26 of Supreme Court; R. S., art. 1037; 52 Tex., 276; 51 Tex., 285; id., 617.
    IV. The oath of claimant that his claim is made in good faith, and the delivery of the same to the sheriff, is a requisite proceeding under the statute; and a failure to make and deliver the affidavit prior to or contemporaneously with the delivery of the bond to the sheriff is a failure to comply with the requirements of the statute, and is therefore cause for the dismissal of the proceedings.
   West, Associate Justice.

The appellees brought suit in the district court of Webb county against one John Bruin to recover a monied judgment, and on the 31st of October, 1881, sued out a writ of attachment, and had the same levied on certain personal property supposed to belong to the defendant, but which was found in the possession of appellant, who claimed to be the assignee of the defendant. In that capacity he set up title in himself to the attached property. ¡Neither the writ, nor the sheriff’s return, both of which should always constitute a part of the record in cases of this character, are to be found in the transcript.

It appears, however, that a considerable period of time elapsed between its issuance and its levy. On December 16,1881, the property was seized. It appears from the recitals in the claimant’s bond, which was on that day approved, that the appellant at the same time tendered him his written oath that his claim ivas made in good faith. The bond being executed in conformity with the statute, the sheriff delivered the property to him. On the 28th day of January, 1882, in time for the February term of the district court, the sheriff returned the bond and oath to the clerk of the court, who on that day filed them. The record shows that the paper supposed to contain the oath, and delivered to the clerk, had, on the 16th day of December, 1881, either not been sworn to at all, or if actually sworn to, was wanting in the jurat of the officer, or the signature of the claimant, or possibly both. It does not appear very clearly what was the precise defect, but it may be inferred from the record that the officer, by some inadvertence on his part, failed to attach to the oath his jurat in both December and January, though the paper tvas before him at both dates in the form of an affidavit, and was probably signed by the claimant, and undoubtedly accompanied the bond. Taking this to be the correct view, the court allowed the jurat to be attached as of the date of January 28, 1882.

On the 11th day of February, 1882, during the term of the court, the appellees moved to. quash the oath and bond, among other grounds, because the claimant had not filed his affidavit in the manner required, and moved to dismiss the case. This motion was granted and all the proceedings were quashed, and the cause dismissed, leaving, it would seem, the attached property in the hands of appellant. The claimant, however, on the same day that this motion was made, excepted to it, and at the same time tendered an issue under the statute.

This action of the court in quashing the bond and dismissing the proceeding is assigned as error.

We are of opinion that, under the facts, this motion should not have prevailed. The property had been levied on and taken from the possession of the claimant. He had given the required bond. The fact that through some inadvertence of the sheriff, or the claimant, or the officer administering the oath, or in some other manner, the oath was left incomplete, would not, if cured in time, deprive the claimant of the right to have his title to the property tried. The amendment of the affidavit was proper. Sims v. Redding, 20 Tex., 388; Arnold v. Kreissler, 22 Tex., 581. Hor áre we prepared to say, under the facts, that the filing of the oath as of date January 28, 1882, instead of December 16, 1881, though undoubtedly informal, was such an irregularity or error as would .vitiate the proceedings. It has been held that, where the claimant executed his bond to the wrong person, he may file a new bond. Parker v. Portis, 14 Tex., 170. After the amendment was allowed, as was done in this case, instead of dismissing the suit, the court should have tried the case and disposed of the matters raised by the issue tendered. Sweeney v. Jarvis, 6 Tex., 38; Wright v. Henderson, 10 Tex., 204.

The case of Carter v. Carter, 36 Tex., 693, does not lay down any different rule. It is simply there held, as has been frequently done since (Pool v. Sandford, 52 Tex., 621; Rodrigues v. Trevino, 54 Tex., 198, and other cases), that in ordinary attachment suits, third persons claiming only an interest in the property attached, and not in the subject matter of the suit, cannot intervene in the main action for the purpose of asserting their right to the attached property. The proper course, as a general rule, if they desire to set up their right to the property, is to file a claimant’s bond, as was done in this case, or pursue the sheriff in an action of trespass, as was done in Weaver v. Ashcroft, 50 Tex., 427.

[Opinion delivered January 19, 1883.]

The judgment is reversed and the cause remanded.

Reversed and remanded.  