Martin v. Tucker
| Citation | 59 Tex. 249 |
| Decision Date | 17 April 1883 |
| Docket Number | Case No. 4742. |
| Court | Supreme Court of Texas |
| Parties | EVANS & MARTIN v. W. S. TUCKER. |
OPINION TEXT STARTS HERE
APPEAL from Wise. Tried below before the Hon. C. C. Potter.
R. E. Carswell, for appellant.
The assignments of error in this cause bring in question the action of the court in quashing the attachment sued out by appellants. The motion to quash contained two grounds: 1. The affidavit upon which the attachment was based did not allege that the defendant was justly indebted to the plaintiff. 2. The affidavit alleged that the entire debt would fall due on November 22, 1881; whereas the petition shows a part then due, and the balance to become due November 22, 1881.
Our attachment law requires that, before the writ shall issue, the plaintiff, his agent or attorney, shall make oath that the defendant is justly indebted to the plaintiff and the amount of his demand. It has been frequently held by this court that to obtain the benefits of the writ the party applying for it must comply strictly with the requirements of the law. Gregg v. York, Dallam Dig., 528; Wooster v. McGee, 1 Tex., 17;Caldwell v. Haley, 3 Tex., 317, 321;Espy v. Heidenheimer, 58 Tex., 662.
The statute is not literally or even substantially complied with when important words required to be contained in the affidavit are omitted. It is to be presumed that all such words are required by the law for some good purpose; or at least it is not for us to say that they are not. There might be an indebtedness which the creditor would not be willing to swear was just, such as a collusive claim gotten up between the creditor and debtor for the purpose of obtaining an attachment and thereby getting a preference over other creditors. And other instances might be given. The object of the statute was doubtless to have the attachment issued upon a bona fide indebtedness. At any rate the act requires the use of the word justly, and we have no authority to dispense with it. The farthest that a court could go would be to allow the use of a synonymous or equivalent term.
The case of Luingoud v. Shaw, 10 Missouri, 273, is cited as holding the contrary doctrine. The attachment law of that state is much less stringent than our own, and is more liberally construed in favor of the creditor. Besides, the indebtedness sued on is required to be so well described in the affidavit that if such description is given it amounts to an allegation of a just indebtedness. Drake on Attachment, pp. 672, 673, and Luingoud v. Shaw, supra.
We prefer the rule in Maryland, where the statute uses the words bona fide instead of justly, and the omission of these words is held to vitiate the writ. Thompson v. Touson, 1 H. & McH., 504.
The second ground for quashing the...
To continue reading
Request your trial
-
Crim v. Harmon
...it as the sum due at the least) and upwards." See argument of counsel in Thompson, v. Towson (Ml. 1772) 1 liar. & MeH. 504: Leans v. Tucker (1883) 59 Tex. 249. These qualifying terms prescribed by the statute are not idle and useless. First. An apparent indebtedness maybe, in and of itself,......
-
Clifford v. Campbell
...60 Tex. 41, and authorities cited. On the question of estoppel, he cited: R. S., art. 2039; Lockhart v. White, 18 Tex. 102-108;Evans v. Tucker, 59 Tex. 249.No brief on file for defendant in error.STAYTON, ASSOCIATE JUSTICE. There can be no question as to the right of the plaintiff in error ......
-
Rino v. Parrish
...1103; Solinskey v. Young, 4 Willson, Civ. Cas. Ct. App. § 269, 17 S. W. 1084; City Nat. Bank v. Flippen, 66 Tex. 610, 1 S. W. 897; Evans v. Tucker, 59 Tex. 249. In the case of City Nat. Bank v. Flippen, supra, the word "is" was omitted from an affidavit for attachment, leaving it to read, "......
-
Crim v. Harmon
...it as the sum due at the least] and upwards." See argument of counsel in Thompson v. Towson, (Md. 1772.) 1 Har. & McH. 504; Evans v. Tucker, (1883,) 59 Tex. 249. These qualifying terms prescribed by the statute are not idle and useless. First. An apparent indebtedness may be, in and of itse......