The opinion
On Appellant’s Motion for Rehearing.
In support of his assignment that the trial court was not authorized to foreclose the attachment lien upon the 275 acres, being all of the E. McGary survey and the north 200 acres of the 300-acre tract of the B. P. Wood survey, appellant quotes the following language from Frank v. Brown Hardware Co., 10 Tex. Civ. App. 430 , 31 S. W. 64 :
“The averments in the affidavit for attachment were not in issue, and it was unnecessary to allege in the petition that an attachment had been sued out, or to pray therein for foreclosure of the attachment lien. The production of the affidavit, the bond, the writ, and the return of the officer executing the same, thereon indorsed, giving a sufficient description of the property levied on, authorized the court, upon motion of plaintiff, to give judgment foreclosing the lien.”
It is urged that in the cited case there was evidently introduced 'in evidence the affidavit, the bond, the writ, and the return of the officer executing the same, while in the instant ease the statement of facts does not show the introduction of these matters in evidence, but only shows:
That “the plaintiff offered and read in evidence the writ of attachment dated the 26th day of May, 1922, issued out of the district court of Haskell county, Texas, by R. R. English, clerk, together with the return of the sheriff thereon, showing levy on 275 acres of land, fully described in the judgment in this cause shown in transcript.”
That no showing was made as to the issuance and levy of any writ of attachment on the 200 acres of land out of the B. P. Wood survey, hence, especially as to this tract, the evidence is insufficient to sustain the judgment foreclosing the attachment lien.
The defendant in his answer alleged:
“That on the 26th day of May, 1922, plaintiffs made an application for a writ of attachment and in said affidavit alleged that the plaintiffs would probably lose their debt unless said attachment was issued. That plaintiffs caused said writ of attachment to be issued and levied on 520 acres of land belonging to the defendant, located about 5 miles north of the town of Haskell, Texas.”
He further asked for exemplary damages in the sum of $3,000—
“for the breach of said contract as aforesaid and causing to be issued and levied the writ of attachment herein as aforesaid.”
The two tracts of land on which a foreclosure was awarded in the judgment, amounted to 475 acres of land, less than the amount alleged by defendant to have been attached. The judgment described the two tracts substantially as set out in the original opinion. In his motion for rehearing, the defendant made no objection specifically to the foreclosure of the attachment liens upon these two tracts of land. We are of the opinion that he is in no position now to raise the question that no evidence was introduced to show the issuance and levy of the attachment on the 200 acres. Furthermore, we do not understand from the language quoted in Prank v. Brown Hardware Go., supra, that the court held that it was necessary to introduce' in evidence the affidavit, the bond, the writ, and the return of the officer executing the same, thereon indorsed. Such process and service thereof constituted a part of the ancillary proceeding, and the court and not the jury was the judge of the regularity of this proceeding, and could enter judgment of foreclosure if the attachment proceedings were regular, even without proof thereof being shown in the record. Certainly this question does not present fundamental error, such as to require this court to consider it, where the objection now urged was not presented in the trial court either in the motion for rehearing or by bill óf exception.
The motion for rehearing is overruled.