Focke v. Hardeman
| Decision Date | 17 December 1886 |
| Citation | 2 S.W. 363 |
| Court | Texas Supreme Court |
| Parties | FOCKE and others <I>v.</I> HARDEMAN and another. |
McLemore & Campbell, for appellants. L. H. Lumpkin, for appellees.
This suit was brought upon an account partly due and partly to become due to John Focke, Henry Wilkins, and Herman Lange, constituting the firm of Focke, Wilkins & Lange. An attachment was sued out in the case upon an affidavit that the defendants were indebted to John Focke, John Wilkins, and Herman Lange, composing the firm of Focke, Wilkins & Lange, upon an account having the same amount due, and the same amount to become due, as was stated in the petition. Considered without explanation, the debt sued on and the debt sworn to are different causes of action. An indebtedness to a partnership is an indebtedness to its individual members. Two partnerships may have the same firm name, and yet be composed of different members. One or more members may go out of a firm and others take their places, and the partnership name be retained, but the firm is not the same. The debts due to the former partnership are not due to the second, unless made so by transfer or agreement. A suit upon a claim due the one firm would not be supported by proof of a claim due to the other, no more than an allegation of indebtedness due to one man would be supported by proof of a debt due another. A plaintiff cannot sue upon one cause of action and have the defendant cited upon another; much less can he obtain a writ of attachment in the suit upon a different demand. The affidavit and bond are the foundation upon which the attachment rests for support. If, therefore, the affidavit claims the attachment upon a demand different from that sued on, it is wholly unauthorized in the particular case. The writ of attachment in this case recites that it is issued upon a demand of Focke, Wilkins & Lange, but to which firm of that name does it refer, or to which demand, — the one sued on in the petition, or the one sworn to in the affidavit? If the former, it is not supported by a proper oath; if the latter, it is not accompanied by the petition required in attachment cases. There must be no uncertainty in attachments, which is not explained in the proceedings themselves; for no presumptions will be resorted to for the purpose of sustaining them. Espey v. Heidenheimer, 58 Tex. 662.
That an important variance between the petition and the affidavit or writ will vitiate the latter is well established, and a variance is important when the petition is based upon a demand due to a firm composed of certain members, and the affidavit on a demand due to a firm which is not composed of the same partners. Drake, Attachm. § 36; Wright v. Snedecor, 46 Ala. 92. But it is said by the appellants that the reference in the affidavit to the petition cures the erroneous statement as...
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