City Nat. Bank v. Flippen
| Decision Date | 26 October 1886 |
| Citation | 1 S.W. 897 |
| Parties | CITY NAT. BANK v. FLIPPEN. |
| Court | Texas Supreme Court |
Motion to dissolve an attachment. Judgment for defendant. Plaintiff appealed. The facts are stated in the opinion.
Dan T. Leary, for appellants. Todd & Hudgins, for appellee.
The appellant sued Flippen upon a promissory note, and prayed for an attachment upon the ground that Flippen had disposed of his property, in whole or in part, for the purpose of defrauding his creditors. The petition was not sworn to, but an affidavit was separately made by the agent of the appellant, which was held by the court below to be insufficient to serve as a basis for an attachment. The writ was quashed upon motion, and the ruling of the court in this respect is the only matter complained of in this appeal.
The affidavit is claimed to be defective, because it charges no indebtedness of Flippen to the bank at the time it was made. This is said to arise from the omission of the word "is" before the words "justly indebted" in the affidavit, which makes it read, "The defendant, M. V. Flippen, justly indebted [instead of `is justly indebted'] to the plaintiff," etc. It is clear that this language, as it appears in the affidavit, makes no charge whatever against the appellee. To give it meaning, some word has to be supplied, and the question is, can we supply it in order to support the attachment? There are several words, one or more of which, if placed before the word "indebted," would give a meaning to the sentence; but the word "is" must necessarily be placed there to fulfill the requirements of the attachment laws. By supplying some other tense of the verb "to be," an averment of past or future indebtedness could be made. The expression would be understood, but there could be no oath to the effect that Flippen was indebted to the bank at the date of the affidavit. Without this the affidavit is worthless. The averment must be in the present tense, for without a subsisting debt the writ cannot issue. Because this word is necessary, are we to presume that it was intended to be used? In attachment cases we cannot indulge in presumptions to supply a defect which, if not supplied, prevents the affidavit from coming up to the requirements of the statute. The utmost latitude allowed in this respect is to exact only a substantial compliance with the law, or the use of language which necessarily and properly makes the case provided for the issuance of the...
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...other ground for the writ. The affidavit is obviously detective in omitting the substantial particular stated. City Nat. Bank of Dallas v. Flippen, 66 Tex. 610, 1 S. W. 897; Focke v. Hardeman, 67 Tex. 173, 2 S. W. 363: Moody v. Levy, 58 Tex. 532; Perrill v. Kauffman, 72 Tex. 214, 12 S. W. T......
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