Wooster v. Mcgee

• Citation: 1 Tex. 17
• Parties: WOOSTER, PLAINTIFF IN ERROR, v. MCGEE, DEFENDANT IN ERROR
• Decision Date: 31 December 1846
• Court: Supreme Court of Texas

1 Tex. 17

WOOSTER, PLAINTIFF IN ERROR,

v.MCGEE, DEFENDANT IN ERROR

Supreme Court of Texas.

December Term, 1846.

From Harris County.

It is the official duty of the clerks of the district courts to file all the pleadings and papers in a cause presented by the parties; and to mark them filed with the date of the filing. In making up transcripts for this court these indorsements should be transcribed as an essential portion of the history of the cause. A neglect of this duty will not be presumed--satisfactory evidence of the fact will be required.

“The remedy by attachment, while necessary to secure the rights of the creditor, is oppressive on the debtor; and as against the plaintiff has invariably in this country been subjected to rigid rules of construction. It is summary in its action, and the plaintiff, on whom it confers advantages so signal, must comply with all the incidents pertaining to this stringent mode of redress.”

A proceeding by attachment will be treated as a nullity, unless commenced by petition, or the petition is concurrent with the writ.

This case came up by writ of error to revise a judgment rendered in the district court of Harris county in favor of the defendant against the plaintiff in error.

The suit was commenced by attachment. The first paper found in the transcript is the affidavit of the plaintiff stating the grounds for the attachment; the second is the attachment bond; the third the writ of attachment with the sheriff's return; and the fourth is a petition signed “Buckley & Sullivan for plaintiff,” and indorsed, “This petition is made a part of the attachment in this suit--Buckley & Sullivan, attorneys for plaintiff.” The petition is neither dated nor marked “filed,” and contains among others the following allegation: “Wherefore plaintiff has sued out and obtained an attachment for said sum of money, returnable into this court.” The attachment was levied upon real estate; and at the same time a notice of garnishment was served upon two other persons.

The judgment of the court commences as follows: “In this case came the parties by their attorneys, and the defendant having withdrawn the plea by him herein pleaded says nothing further in defense of this suit. It is therefore considered,” etc. There is no evidence in the record that the defendant had notice of the suit or that he appeared in court, other than is contained in the entry of the judgment as above stated.

J. W. Henderson, for plaintiff in error, contended, 1st. That no petition was filed in this case as the law directs. Fowler v. Poor, Dall. Dig. 401.

2d. That the petition found amongst the papers in the cause was never filed by the clerk, which was error. Laws 1st Congress, sec. 8, p. 201.

3d. The attachment could not be served upon garnishees and levied upon land at the same time. The mode of attaching in the hands of a garnishee and upon land is different. See Attachment Law, secs. 9 and 12.

4th. The garnishees should have been pursued to final judgment. See Attachment Law, see. 15.

5th. The affidavit is insufficient to obtain an attachment against the lands of the defendant. Attachment Law, sec. 12.

6th. It could not be levied upon land whilst there was personal estate, and the plaintiff shows an indebtedness by the garnishees.

7th. This court has heretofore held that the writ of attachment is a summary remedy extended by statute, and all the strictness imposed by the statute should be pursued. Gregg v. York, Dall. Dig. p. 528; Sydnor v. Chambers, Id. p. 601.

8th. There was no plea filed by the defendant or his attorney. The judgment is uncertain and the interest was not ascertained by the finding of a jury or by the court.

9th. The judgment of the court was for a different amount from that claimed in the affidavit, writ and note filed, which was error. The amount claimed was $339 besides interest; and the amount of the judgment was for $397.50, interest and cost, which is manifest error.

10th. The recital of the clerk that the parties came by their attorneys would not include a party who was not served. 1 How. p. 507.

HEMPHILL, C. J.

This was a proceeding in attachment and the judgment of the court below is sought to be reversed on various grounds.

Among the errors vitiating the case it is assigned that there was no petition filed at the commencement of the suit.

On examination of the record a paper is found purporting to be a petition in the usual form and with averments appropriate to the cause of action; but this is charged to have been surreptitiously introduced in a subsequent stage of the proceedings without the...