3 Tex. 317 | Tex. | 1848
after stating the facts of the case, ' delivered the opinion of the court.
The only questions which it is deemed material to consider, relate to the overruling of the exceptions to the petition and the motion to quash the attachment.
In our pleadings, it has uniformly been held essential to state the facts on which the party intends to rely as constituting his cause of action or ground of defense, with such circumstantial accuracy as to apprise the opposite party of what is intended to be proved at the trial. [Wright vs. Wright (decided at the present term); Mimms vs. Mitchell, 1 Tex. Rep. 443; Carter & Hunt vs. Wallace, 2 Tex. Rep.] That the petition in the case before us does not contain the requisite accuracy and certainty, is manifest. It apprises the defendant of no one fast going to constitute the plaintiff’s cause of action, with time, place, quantity, value, or any other circumstance of identity or certainty. It can, in no just sense, be said to contain a statement of the facts of the plaintiff’s case, so set forth as to apprise the defendant of the real nature of the plaintiff’s demand, and of the facts intended to be proved?] On the con
The petition in this case seems to have been framed in imitation of a declaration in the English system, embracing the common cownts; and it would, perhaps, be difficult for one not acquainted with that system, to conjecture what the pleader really had in view, or where he had found the model of a petition by which so effectually to disguise and conceal, under the pretense of stating the real facts and circumstances of his case. But in our pleadings the common counts are unknown. Every action is a special action on the particular case; and the petition must be framed in respect to the particular grievance for which the party seeks redress. This has not been done in the present instance, a.nd we are of opinion that the petition is defective and insufficient.
There doubtless will be cases in which it will not be practi
The petition being defective and insufficient, the attachment
By the act “ to regulate proceedings in the district courts35 [Acts 1846, p. 402, see. 143], it is provided that no writ of attachment shall be issued by any civil officer of this state, or by order of any judge of the same, unless the party applying for such writ or process shall first make affidavit in writing of the ■ truth of the matter set forth in his petition.” This provision of tlie statute was not complied with. And it has been the uniform practice of our courts, in proceedings by attachment, to require an exact and literal compliance with the requirements of the statute. [Dallam, 469; id. 528; id. 604; 1 Tex. R. 17.] The writ was issued in this case against the express prohibition of the statute, and the court erred in refusing to quash the writ on the motion of the defendant. And because, also, the court erred in overruling the defendant’s exceptions to the petition of the plaintiff, the judgment is reversed, and the cause remanded for further proceedings.