Chevallier v. Henry H. Williams & Co.

• Decision Date: 31 December 1847
• Court: Texas Supreme Court
• Parties: CHARLES CHEVALLIER v. HENRY H. WILLIAMS & CO.

2 Tex. 239

CHARLES CHEVALLIER

v.HENRY H. WILLIAMS & CO.

Supreme Court of Texas.

December Term, 1847.

Appeal from Galveston County.

The 9th section of the act of 1840 (p. 89), “To regulate proceedings in civisuits,” prescribes no form for the oath or affirmation required in the verifical tion of a plea in abatement. If the plea be signed by the party, and attested by the clerk in the following words: “Sworn to and subscribed before me,” etc., it is a substantial compliance with the requirement of the statute.

When a defendant has a permanent residence in the state, it is his privilege to be sued in the county of his residence. A suit brought against him in any other county, except in a few instances provided for by the statute, may be met and successfully resisted by a plea in abatement; and it makes no difference whether the suit be commenced by the ordinary process in personam, or by an attachment against his property.

When an attachment is resorted to simply as process to bring the party or the cause before the court, it is not, strictly speaking, a proceeding in rem. It is only used as auxiliary to the ordinary process.

Attachment laws and the proceedings under them are in all courts subjected to the strictest scrutiny. Being a departure from the ordinary course of proceeding, they are often productive of much hardship, and not unfrequently result in great sacrifices to the defendant. Laws so open to abuse present no claim to the liberal construction of a court governed by sound principles in deciding on the rights of the citizen.

This suit was commenced in the county of Galveston by Henry H. Williams & Co., the appellees, against Chevallier, the appellant, to recover the amount alleged to be due on a promissory note. The plaintiffs below, having made the oath required by the statute, that the defendant was about to remove his property beyond the republic, whereby he would probably lose his debt, procured an attachment to be issued and levied on sixty-nine bales of cotton belonging to the defendant. After the levy of the attachment, and before the trial of the cause, an order was obtained from the district judge to sell the cotton for cash on giving ten days' notice of the sale, and under this order the sixty-nine bales of cotton were sold for eight hundred and seventy-two dollars. The sheriff's bill of charges on the cotton shows that it was in possession of the plaintiffs when levied on, as their account for storage and other incidental expenses upon it from a time anterior to the issuance of the attachment and up to the day of sale, forms the most material item in that bill of charges. The whole amount of the expenses attending the levy and sale, including the plaintiffs' charges, was one hundred and sixty-six dollars and eight cents.

The defendant filed two pleas in abatement, both setting up the fact that at the time of the commencement of the suit and the issuance of the attachment he was a resident citizen of Nacogdoches county. These pleas were signed by the defendant and attested as follows: “Sworn to and subscribed before me this 5th day of October, 1843. Samuel Hinton, Deputy Clerk.”

The defendant also pleaded a general denial of the plaintiffs' cause of action, and in reconvention for a larger sum than the plaintiffs claimed.

The plaintiffs demurred to the pleas in abatement, and the demurrer being sustained by the court, the parties went to trial on the other pleas. The plaintiffs obtained a verdict and judgment, and the defendant appealed.

H. N. & M. M. Potter, for appellants.

J. B. Jones, for appellees, contended that the pleas in abatement were not supported by affidavit as required by law. He also contended that the proceeding by attachment was a proceeding in rem, and it did not matter where the owner was, so that the property could be reached by the process of the court He referred to Sutherland v. DeLeon, 1 Tex. 250.

Mr. Justice LIPSCOMB delivered the opinion of the court, Mr. Justice WHEELER not sitting in the cause.

The appellant contends that the court erred in sustaining the plaintiffs' demurrer to the pleas in abatement.

The 5th section of the act to establish the jurisdiction and powers of the district courts, acts 1836, provides that

“No person shall be sued out of the county in which he may reside except in the following cases;” the statute then designates ten exceptions which need not be recited, as the present action very clearly does not come within any of them. And it is beyond controversy that the appellant was not liable to be sued in the county of Galveston, if it be true, as pleaded by him, that he was a resident citizen of Nacogdoches county when the suit was instituted. The appellee, however, contends that the plea in abatement was bad, because it was not sworn to.

The plea sets forth the fact of residence in the county of Nacogdoches at the time that suit was commenced, and goes into some complaints of the hardship of being sued out of the county of his residence, and other matters superfluous; and the defendant's name is subscribed to it; and the attestation of the clerk is in the following words, i. e.: Sworn to and subscribed before me, this 5th day of October, 1843. Samuel Hinton, Deputy Clerk. Whether...