McMahan v. Boardman

29 Tex. 170 | Tex. | 1867

Moore, C. J.

The only question in this case is as to the correctness of the ruling of the court on the motion to quash the attachment. The writ and bond are in strict conformity with the statute. The affidavit is said by counsel to have been held defective in the court below, because it was conceived that the averment, that the defendant was not a resident of the State, was qualified by the addition of the words, “so that the ordinary process of the law cannot be served upon him.” While we are unwilling to sanction a relaxation of the rule of strictness,, which has always been required in construing affidavits of this character, we cannot agree that this departure from the- literal words of the statute is sufficient ground to quash the attachment. The statute only requires an affidavit that the defendant “is not a resident of this State.” The assertion of the conclusion, from the fact of the defendant’s non-residence, that the ordinary process of the law could not be served upon him, in no way abstracts from or militates against the existence of the predicate upon which the statute authorizes the attachment. The addenda in the affidavit may, in some sense, go beyond the requirement of the statute; to hold that it falls short of it, would be a degree of refinement, which we are unable to appreciate.

The judgment is reversed, and the cause

Remanded.