Messner v. Lewis

20 Tex. 221 | Tex. | 1857

Wheeler, J.

It is no objection to the petition, that the plaintiffs join in their suit several demands for debts contracted with them by the defendant in different firm names. They sue in their individual, not in their partnership names; and as the same persons were the parties to the several contracts, it is quite immaterial by what, or how many different names they may have transacted their business: they are still the same contracting parties, and the proper parties to bring suit upon their contracts, under whatever names contracted.

The only remaining objection to the judgment, which requires notice, is to the overruling of the motion to quash the attachment, and set aside the return thereon. In support of the motion to quash or dissolve the attachment, it is insisted that the bond is insufficient, on two grounds ; first, that it is executed by the plaintiffs in their firm name ; second, that the authority of the attorney to sign does not appear. As to the first ground it is to be observed, that it was not necessary that the bond should be executed by the party. The provision of the statute is that “ the plaintiff, his agent or attorney” shall give bond, &c. (Hart. Dig. Art. 26.) Under similar statutes it is held that the attorney may sign the bond in his own name, either describing himself as agent or not at his discretion ; and it will be a compliance with the statute. In that case the agent, of course, will be responsible under the bond, and not the principal. (Drake on Attachments, p. 135, Sec. 134, and cases cited.)

The remaining ground of the motion to quash the attachment is answered by the cases of Messner v. Hutchins (17 Tex. R. 597,) and Wright v. Smith (Tyler Session, 1857,) where it was decided that on a motion to quash an attachment, the authority of the attorney who signed the bond will be presumed; if it is intended to question his authority it must be done by a plea to that effect. And it is for this obvious reason, that the motion is based on defects apparent on the face of the proceedings, and nothing will be considered but what is thus apparent. If there be any intrinsic defect in the proceedings, not discernible on their face, it cannot be brought before the Court by motion. It is not the office of the motion, any more than it is the office of a demurrer, to bring before the Court matters aliunde ; that must be done by plea.

The assignment of error brings in question the sufficiency of the return upon the writ issued to Bastrop county. To this return it is objected that it was not properly amended, and that, as amended, it is still insufficient. As to the first objection, we are of opinion that it was within the discretion of the Court, and a proper exercise of its discretion, to permit the amendment. As a general proposition every Court may allow amendments of returns upon its process; and the statute affirms the general principle. (Hart. Dig. Art. 681; Drake on Attachments, 203, Sec. 202.)

But as to the sufficiency of the return, as amended, there is more question. The only description it gives of the property attached is, that it is “ a stock of goods, wares and merchandise.” This, we think, was not sufficient. On general principles, independent of any statutory regulation, the officer is bound to give, as nearly as it can reasonably be done, in his return, or in a schedule or inventory annexed thereto, or accompanying the return, a specific description of the articles attached. For the purpose of executing the writ, the officer may enter the store of a third person where the goods of the defendant are, and may remain there long enough to seize, secure and inventory the goods. (Drake on Att. p. 199, Sec. 198, 191.) There can be no excuse for a failure to execute the writ in such a manner as to render the goods attached capable of being identified, and the return should show that it was so executed. In the language of the Court in Haynes v. Small, (22 Maine, 14,) “ Officers ought to know what they attach, and to be holden to exactness and precision in making their returns. Neither the debtor nor the creditor would be safe if it were otherwise.”

We are of opinion that the return upon the writ to Bastrop was insufficient, and that the Court erred in refusing to quash or set it aside ; for which the judgment will be in so far reversed; in all other respects it is affirmed.

Ordered accordingly.