Tarkinton v. C. E. Broussard & Co.

51 Tex. 550

• Court: Texas Supreme Court
• Decided: July 1, 1879
• Status: Published

Opinion

Bonner, Associate Justice.

The material questions presented in argument by the brief of appellants arise upon the alleged insufficiency of the evidence to sustain the verdict and upon the judgment of the court overruling the motion to quash the attachment.

The jury having found, upon conflicting testimony, that T. B. and J. P. Tarkinton were partners, we do not feel authorized, under the evidence and the rules of practice, to say that the verdict was so clearly wrong as to authorize this court to set it aside.

The ground upon which the motion to quash was based, was that the original petition in attachment did not state to whom the note sued on was made and delivered, or that the plaintiffs were the owners and holders of the same.

The petition as originally presented, and upon which the attachment issued, declared upon a promissory note mentioned therein and a copy of which was made a part thereof, and upon which the judgment was finally rendered, but was so defective in not stating to whom the same was delivered or to whom it then belonged as not to be good on general demurrer. This, however, was cured by subsequent amendment.

The affidavit annexed to the petition stated that the allegations in the petition were true; that the defendants were justly indebted to the plaintiffs in the amount of the demand; that the defendants were about to remove their property beyond the limits of the county of Eavarro, and that thereby the plaintiffs would probably lose their debt, and that the attachment was not sued out for the purpose of injuring the defendants.

Under the statute and decisions of this court, this was a sufficient affidavit to have authorized the issuance of an attachment. (Paschal’s Dig., art. 142; Primrose v. Roden, 14 Tex., 1.) .

The question arising upon this state of pleading is this: Is a petition in attachment upon a sufficient cause of action, but which is so defective in its allegations as not to be good on general demurrer, and which is subsequently cured by amendment, sufficient, under our practice, to support the attachment sued out thereon ?

This presents a different case from that of Sydnor v. Chambers,1 Dallam, 601, in which the affidavit itself, upon which the attachment issued, was sought to be amended.-

Our statute provides that “ the pleadings in all suits may be amended under the direction of the court, and upon such terms as it may prescribe, at any time before the parties announce themselves ready for trial.” (Paschal’s Dig., art. 54.)

Though the petition may be subject to special or general demurrer, yet, under our practice, if the suit is founded upon a proper cause of action, described therein with such certainty as to reasonably apprise the defendant of the same, an amendment will relate back to the date of the commencement of the suit.

It has been decided at the present term that such petition is sufficient to stop the running of the statute of limitations. (Killebrew v. Stockdale, supra, p. 535.) A petition so defective as not to show that the court had jurisdiction even, may be cured by amendment. (Ward v. Lathrop, 11 Tex., 291; Evans v. Mills, 16 Tex., 199.)

If such petition, by amendment, can be made sufficient for the main purposes of the suit, it is believed that, on principle as well as authority, it should be sufficient also—if the defect is cured by amendment, as in this case—to support the ancillary process by attachment, sued out as the means to enforce the judgment which is finally authorized by the pleadings. (Pearce v. Bell, 21 Tex., 690.)

We are of opinion that there was no error in overruling the motion to quash the attachment; and there being no error apparent of record, the judgment below is affirmed.

Affirmed.