C. B. Carter Lumber Co. v. De Grazier

3 Willson 220

• Court: Court of Appeals of Texas
• Decided: November 17, 1886
• Docket: No. 2371
• Status: Published

Opinion

Opinion by

Will-son, J.

§176. Attachment; affidavit for, by treasurer of a private corporation, held sufficient; case stated. Appellant sued appellee in the county court to recover an alleged indebtedness, and sued out an attachment which was levied upon certain real estate belonging to appellee. The affidavit for the attachment was made by B. M. Carter, who stated therein that he was the treasurer of the O. B. Carter Lumber Co., which company was alleged in the petition to be a private corporation incorporated under the general incorporation law of this state. Upon motion of appellee the attachment was quashed upon the ground that said affidavit did not show upon its face that it was made by the plaintiff, his agent or attorney. Held, error. If B. M. Carter, the affiant, was treasurer of said corporation, he was a member thereof, because the law creates said office of treasurer, and requires that it shall be filled. [R. S. art. 580.] Prima facie, said B. M. Carter is one of the plaintiffs in this suit, and entitled to make the affidavit, and his authority to do so cannot be questioned by a mere motion to quash. [Evans v. Lawson, Smith & Co. 64 Tex. 199; Messner v. Lewis, 20 Tex. 222; Messner v. Hutchins, 17 Tex. 597; Baker v. Stewart, 4 Tex. Law Rev. 243; W. & W. Con. Rep. § 830.]

§ 177. Homestead right; county court cannot adjudicate. Appellee pleaded and claimed that the real estate levied upon under the attachment was his homestead, and therefore exempt. This plea upon exception made thereto by appellant was stricken out. Held correct. The county court was without jurisdiction to entertain and determine said plea, as it involved title to land. [W. & W. Con. Rep. § 1061.]

November 17, 1886.

Reversed and remanded.