Marx & Kempner v. Abramson

53 Tex. 264 | Tex. | 1880

Bonner, Associate Justice.

By an unbroken line of decisions from the days of the republic until the present time, an affidavit for attachment cannot be amended.

The original petition in this case was defective on general demurrer, and the affidavit was to the effect, simply, that the allegations in the petition were true. The petition and affidavit were not sufficient to have authorized the attachment.

The amended petition was filed several months subsequently, and was not sworn to, and although it had the effect to cure the omission in the original petition and support the personal judgment which was rendered on the notes sued upon, yet, if it were permitted to sustain the attachment, which was otherwise invalid, this, under the circumstances, would be an amendment to the affidavit.

In the case of Tarkinton v. Broussard, 51 Tex., 550, referred to by counsel for appellant, there was a separate affidavit, which, within itself, contained the essential requisites of the statute authorizing the issuance of an attachment, and which was consistent with the allegations of the original petition.

In that case, however, it was distinctly intimated, that though a subsequent amendment could be made, which would relate back and cure defective allegations in the original petition in regard to the same cause of action, yet that it would not aid a defective affidavit.

That case was essentially different from the one now before the court.

The objection that the motion to quash was made too late, was not presented at the proper time to the court below, and we give no opinion upon that question.

Affirmed.

[Opinion delivered April 27, 1880.]