Emily Toland v. Swearingen & Smith, 39 Tex. 447

McAdoo, J. There are two grounds at least on which the judgment of the District Court must be affirmed. 1. A simple personal judgment was taken, and none rendered foreclosing the lien on the property attached. It is no answer to this position that the property levied on was turned over by the sheriff to the defendant in the distress warrant, and that he may have disposed of the same.' This kind of action—by distress warrant—is a proceeding in rem; the property1 rightly seized under such a warrant is such as makes it specially bound for the payment of the rent debts.

A distress warrant could not be levied on a tract of land belonging to the defendant in the distress warrant. The mere fact that it is levied on certain specific property made by law subject to seizure, is what gives jurisdiction to the District Court of a case originating with a justice of 'the peace.

It is true after the levy of the distress warrant on property subject to such levy, and a return of the papers into the District Court, the suit there should be for a personal judgment against the rent debtor; but in order to hold the sureties on the replevy bond liable, there must be a judgment in rem, a foreclosure of the attachment lien. If the plaintiff be content to take a mere personal judgment against the rent debtor, or if he fail to establish his claim to a foreclosure, and thereby obtain a mere personal judgment, then the replevy bond becomes functus officio.

The levy is abandoned in the one case, and lost in the other. A -replevy bond is not a security for the debt sued bn, but is a security for the forthcoming of the very property levied on, or its value. If the very property be abandoned by the plaintiff, if he take no judgment of foreclosure upon it, then the sureties are released. It is not like taking a non-suit as to an ordinary surety, which may be followed up by a new suit. It is a clear abandonment of the cause of action as against the obligors on the replevy bond. The liability of the obligors does not arise until after judgment against the debtor.

They did not stand good for debt, but for the property. The judgment ignores the property, and there is nothing in the judgment for them to respond to. This court held in Cook v. Love, 33 Texas, 487, that in order to make an attachment lien available, it must be carried into a judgment, and that a judgment in personam, without a foreclosure of the lien, is an abandonment of the attachment. And in Johnson v.

Murphy, 17 Texas, 217, it was held, where suit was instituted on a note, and to foreclose a mortgage given to secure it, and a judgment was taken only on the note, and without an order of foreclosure or sale, that it was, as to the mortgage, res adjudicóla, and that another suit to foreclose the mortgage could not be instituted. 2. The other ground is, it is not made to appear that at the date of the institution of this suit against the sureties on the replevy bond, the principal (King) was insolvent.

The testimony was not sufficient, and in the absence of such testimony the suit could not be prosecuted against the sureties without a joinder of the principal with them. There are other grounds presented in the record which, we think, would defeat the appellant in this action, but we deem it unnecessary to notice them. The judgment of the District Court is affirmed. Affirmed.