19 S.W. 479 | Tex. | 1892
This suit was brought by the appellant upon two promissory notes, aggregating $1129.28, both dated the 1st day of August, 1889, and due ninety days after date. Plaintiff's original petition was filed on the 9th day of October, 1889, which it will be observed was before the maturity of the notes. The date of the notes and the time of their maturity were correctly described in the petition, and also in an affidavit for a writ of attachment made when the suit was brought. The notes did not bear interest before maturity, but stipulated for "10 per cent attorney fees if collected by law or if placed with attorneys for collection." At the same time the plaintiff filed an attachment bond for the sum of $2400. The writ of attachment was levied upon real estate and returned.
On the 30th day of October, 1889, the plaintiff filed a second affidavit for attachment, similar in every material respect to the one first filed, and executed a second bond for attachment for the sum of $3000, upon which a second writ of attachment was issued, which was directed to be returned "instanter" to the court then in session. It was so returned, indorsed with a levy upon real estate.
Plaintiff, on the 4th day of November, 1889, the day on which the notes became due, allowing for days of grace, filed an amended original petition.
The defendant answered, and also filed a motion to quash the writs of attachment upon the following grounds:
1. Because the bond was not in double the amount of the debt sued for.
2. Because the affidavit "is made upon a debt then due, when the notes sued upon were not then due." *341
3. Because the writ last issued was made returnable "instanter."
The court, on the 12th day of November, 1889, sustained the motion to quash the attachments, and then dismissed the suit on the ground that it was prematurely filed. The first bond being for less than double the amount of the debts and the attorney fees, was insufficient; but that objection was cured by the second one, which was for an amount more than double the debts, including the attorney fees.
The objection that the petition and affidavit did not show that the suit was for the collection of unmatured debts can not be maintained, as both the petition and the affidavit showed such to be the fact. Such being the case, it was unnecessary for the pleading or the affidavit to contain an express assertion that the debts were not then due. If the objection had been well taken in the first place, still, as an amended petition was filed after the debts had matured, the suit should not have been dismissed, even if the writs of attachment had been properly quashed. The direction for the return of the second writ "instanter" was not a ground for quashing it. The statute requires that the writ shall be returned on or before the first day of the next term of the court. Rev. Stats., art. 176.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
Delivered April 15, 1892.