Gregg v. York

1 Dallam 528

• Court: Texas Supreme Court
• Decided: June 15, 1843
• Docket: No. XVII
• Status: Published

Opinion

OCHILTREE, Justice.

In this case York sued out an original attachment against the estate of Gregg, returnable to the spring term of the District Court of Milam County, for the sum of $3400. At the fall term, 1840, of said court, a judgment was rendered against the defendant, from which said judgment a writ of error was taken to this court. It is not essential to a proper disposition of this cause that we should pronounce in detail upon the various errors assigned, but will confine our opinion to that assignment which sets forth that there is a material variance between the grounds of attachment sworn to in the affidavit of York and those recited in the writ of attachment as having been sworn to by him. The ground set forth in the affidavit is, that the said John Gregg resides beyond the jurisdiction of the courts of the Republic, so that the ordinary process of law can not be served on him; and further, that the said John Gregg is so making way with his property, that the said plaintiff will be likely to lose his debt. The writ describes the affidavit as follows: “Oath also having been made that the said John Gregg absconds or secretes himself, or resides beyond the jurisdiction of the court, so that the ordinary process of law can not be served against him, or is about to remove his property beyond the jurisdiction of the (court,” etc. Ala. Rep., 14. The writ of attachment is a summary remedy created by statute; the statute should be followed in all respects, and all the incidents pertaining to the remedy must be strictly complied with. See McCord, 312. Inasmuch as there is a material departure from the affidavit in the writ, the latter should have been quashed below, when the motion was there made. The writ is also double and uncertain as to the ground on which the plaintiff intended to found his attachment, and is not of such a definite and certain character as would enable the defendant to know what he had to answer, so that he might plead thereto a direct and unequivocal plea. 1 Chitty, 285. We are therefore of opinion that the court below erred in refusing to quash the attachment, and that the judgment below be reversed and annulled.

Reversed.