Espey v. Brothers

• Decision Date: 09 February 1883
• Docket Number: Case No. 1540.
• Citation: 58 Tex. 662
• Parties: JULIUS ESPEY ET AL. v. HEIDENHEIMER BROS.
• Court: Texas Supreme Court

58 Tex. 662

JULIUS ESPEY ET AL.

v.HEIDENHEIMER BROS.

Case No. 1540.

Supreme Court of Texas.

Feb. 9, 1883.

ERROR from Galveston. Tried below before the Hon. Wm. H. Stewart.

The opinion states the case.

Scott & Levi and McLemore & Campbell, for plaintiff in error.

Robert G. Street and A. N. Mills, for defendant in error.

I. “That the court erred in overruling the motion to quash the writ and proceedings in attachment in the cause” is not “a distinct specification by the plaintiff in error of a ground on which he relies” for reversal. R. S., art. 1037; Rules of Supreme Court, 23, 24, 25 and 26; Pierson v. Flanagan, 52 Tex., 256; Carter v. Roland, 53 Tex., 544;Flanagan v. Womack, 54 Tex., 45;Green v. Dallahan et al., 54 Tex., 285; H. & T. C. R. R. Co. v. Shafer, 54 Tex., 641.

II. The assertion (first proposition of plaintiff in error under first assignment), “the affidavit for attachment does not state that defendants are justly indebted to plaintiff, nor the amount of the demand, as required by law;” and the assertion (second proposition under first assignment), “the petition of plaintiffs, which is made part of the affidavit for attachment, and the said affidavit taken as they are made together, are confused and contradictory in their several statements, in so much that it is impossible to ascertain therefrom what amount of indebtedness is owing by defendants to plaintiff, or for what amount a writ of attachment should issue, and there is no certainty as to what is the amount of the demand for which the writ of attachment is sought;” and the assertion (fourth proposition under first assignment), “the writ of attachment issued herein is not the writ which the bond in attachment was given for, in this, that the said bond is given for the issuance of a writ which will accord with the affidavit and petition, and be for the same amount as the demand sued for and sworn to; and the said writ does not accord with said affidavit and petition, but is for another and wholly different amount from the demand sued for and sworn to,”--are none of them propositions or statements of points under the assignments relied on, but are “merely the assertion or affirmation of a principle or rule of law, or some matter of fact,” and are “not the propounding or affirming of some matter or thing done in the court below embraced in the particular assignment of error under which the proposition is made, for which the judgment should be reversed.” Supreme Court Rules, 30, 31, 32, 33 and 34; Shanks v. Carroll, 50 Tex., 20.

III. In a suit on a promissory note where the affidavit states that “the defendant is justly indebted to the plaintiff,” and by way of stating the amount of the demand fully describes the note, giving its amount, rate of interest specified, the date from which interest is to be calculated, in short, giving all the data by which the amount of indebtedness at the date of the filing of the suit becomes merely a matter of calculation--a necessary conclusion,--and does not otherwise undertake to state the amount of the demand, there is substantial and sufficient compliance with the provision of our statute regulating attachment proceedings, requiring the plaintiff to make affidavit “stating that defendant is justly indebted to the plaintiff, and the amount of the demand.” Marshall v. Alley, 25 Tex., 344;Morgan v. Johnson, 15 Tex., 568; Drake on Attachments, 107; Kennedy v. Morrison, 31 Tex., 207; Sayles' Pr., § 351, and authorities there cited.

IV. There is no confusion or contradiction in the statement of the amount of the indebtedness in the affidavit and petition; none pointed out by the plaintiff in error in his motion to quash, in his petition for new trial, in his assignments of error, or by the propositions made in his brief, and mere surplusage will not vitiate. McMahan v. Boardman, 29 Tex., 170; Drake on Attachments, § 107; Sayles' Pr., § 351, and other authorities there cited.

V. That the writ of attachment issued for less than the amount claimed in the petition or set forth in the affidavit is not ground for quashing the attachment on motion of the defendant.

VI. The allegation in the petition (there being no attempt to set out the notes in hæc verba, but only to charge them according to their legal effect), that the notes provided for the payment “of attorney's fees at the rate of ten per cent. if suit had to be brought to collect the same,” is sustained by the production of notes promising to pay, in addition to principal and interest, “ten per cent. attorney fees, if collected by law.”

WILLIE, CHIEF JUSTICE.

This suit was brought below by appellees, Heidenheimer Bros., against the firm of Julius Espey & Co., to recover the amount of four notes described in the petition substantially as follows: One for $1,000, due two months after May 23, 1881, with interest at ten per cent. from that date, also attorney's fees at the rate of ten per cent. if suit had to be brought to collect said note; another dated May 23, 1881, for $1,000, due three months after date, with like rate of interest from its date till paid, and with the same condition as to attorney's fees; another for $1,000, of same date and due four months after date, with like rate of interest from date, and same condition as to attorney's fees; another for $1,113.31, of same date, due five months after date, with like rate of interest and same condition as to attorney's fees.

It was alleged in the petition that the firm “contracted in said notes to pay ten per cent. on the respective amounts of said respective notes in case suit or suits had to be filed thereon to collect the same, or either of them, in the courts of the country, and in case defendants made default in the payment of either of them, which default has been made in the payment of the first three notes above set out.” The petition further alleged that by the making execution and delivery of said notes by defendants in manner and form aforesaid to said plaintiff, they have become and are indebted to plaintiff in the respective sums of money specifically set forth therein, and ten per cent. interest per annum on said respective sums of money from the respective dates of said notes, together with ten per cent. on the respective amounts of said notes as attorney's fees, as above set forth, with the exception of the last note above set out, which is not yet due.”

The petition further alleges that plaintiffs below were forced to employ an attorney at law to sue upon the three first notes, on account of the default of Espey & Co. to pay them, and that said attorney's fees were due and unpaid. It also alleges “that the defendants are entitled to a credit of $418.73 on the note first due, being a balance due them on open account.”

An attachment was prayed for and an affidavit made for obtaining the issuance of it. This affidavit sets forth that the allegations of the petition are true, and that the defendants are justly indebted to plaintiff in the sum of $3,000 principal, contained in three promissory notes, each for the sum of $1,000, each dated May 23, 1881, one due and payable in two months after date, one due and payable in three months from and after its date, and one due and payable in four months from and after its date, and each bearing interest at ten per cent. per annum from their date until paid, and ten per cent. on each note for attorney's fees in case said notes or either of them had to be sued on to collect the same by law; said first note becoming due is entitled to a credit of $418.73, and said three notes are due...