Another v. Harding

Decision Date31 December 1849
Citation5 Tex. 386
PartiesWATTS AND ANOTHER v. HARDING.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

It is not necessary on application for attachment that there should be an affidavit apart from the petition; it is sufficient if the petition contain all the requisites of an affidavit and be sworn to.

The District Court has jurisdiction to render judgment, notwithstanding the claim of the plaintiff be reduced below one hundred dollars by payment before the institution of the suit. (Note 68.)

Where the claim of the plaintiff is reduced below one hundred dollars by set-off, the plaintiff recovers costs; and if there be pleas of payment and set-off, the judgment of the District Court in favor of the plaintiff for costs will not be reversed unless the verdict or statement of facts show that the reduction was by payment before suit brought.

Error from San Augustine. This suit was brought against the plaintiffs in error as non-residents. An attachment was prayed for and issued. The petition was sworn to, but there was no separate affidavit. The defendants appeared by counsel and moved the court to quash the attachment for want of a sufficient affidavit; which motion was overruled. They then pleaded several matters of defense, and among others a plea of set-off. There was a verdict and judgment for the plaintiff. A motion in arrest of the judgment was made and overruled. There was no statement of facts.

Ardrey, for defendant in error. It is thought that the only question intended to be relied upon in this case is that of the jurisdiction of the District Court to render judgment where the verdict of the jury is for an amount less than $100.

This question has been settled by this court at the preceding term in the case of Brown & Tarbox v. Kennon. ( Vide, Wills v. Couchman, 4 J. J. Marsh. R., 242.)

WHEELER, J., did not sit in this case.

LIPSCOMB, J.

The plaintiffs in error ask a reversal of the judgment on the ground--

1st. That the court erred in overruling the motion to quash the attachment.

2d. The court erred in overruling the motion in arrest of judgment on the ground that the finding of the jury shows that the District Court had not original jurisdiction in the case, and in overruling the motion to tax the plaintiff with costs.

3d. The court erred in rendering judgment against the defendants in the court below for twenty-two dollars--the amount found by the verdict of the jury--and rendering judgment against them for costs.

To take up these points in the order in which they have been presented: It seems that the petition contains everything distinctly alleged that the statute requires to be sworn to as necessary and...

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5 cases
  • Duer v. Seydell
    • United States
    • Texas Supreme Court
    • January 1, 1857
    ...$100, but which has been reduced to that amount by credits allowed by the plaintiff, who sues for balance only. 2 Tex. 192;4 Tex. 120;5 Tex. 386;9 Tex. 405;25 Tex. 354;post, 340. Error from Dallas. Tried below before the Hon. Nat. M. Burford. The plaintiff's claim consisted of an account of......
  • Pearce v. Bell
    • United States
    • Texas Supreme Court
    • January 1, 1858
    ...shall first make affidavit in writing of the truth of the matter set forth in his or her petition, etc. This court, in Watts et al. v. Harding, 5 Tex. 386, held that the petition might contain all the requisites of an affidavit, and be sworn to. The petition then is, or may be the affidavit......
  • Huffman v. Hardeman
    • United States
    • Texas Supreme Court
    • October 22, 1886
    ...This court has held that, if all the requisites of an affidavit be contained in the petition, there need be no separate affidavit. Watts v. Harding, 5 Tex. 386. The statute requires that a certain state of facts shall be sworn to before an attachment shall issue. It can make no difference i......
  • The Fremont Cultivator Company v. Fulton
    • United States
    • Indiana Supreme Court
    • November 3, 1885
    ...Miller v. Chandler, 29 La. Ann. 88. See, also, where the same rule is applied in actions of replevin, Cox v. Albert, 78 Ind. 241; Watts v. Harding, 5 Tex. 386. In last case the court said: "The petition is sworn to, by the petitioner; and the objection, that it is not sworn to, in a separat......
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