Ward v. Lathrop

11 Tex. 287 | Tex. | 1854

Wheeler, J.

This case was before the Court, at its December Term, 1849, by writ of error, brought by the present plaintiff in error, who was defendant in the Court below. The judgment was reversed and the cause remanded, because there was not sufficient matter, appearing upon the face of the petition, to give the Court jurisdiction. It appeared that both plaintiffs and defendant were non-residents of the State ; and there was no averment that the defendant had property or effects within the State. There could be no intendment to that effect, in the absence of an averment. There appearing, therefore, by the petition, neither person nor property within the State, to give the Court jurisdiction, we held that the Court below erred in overruling the demurrer to the petition. The cause having been remanded to the District Court, the plaintiffs there amended their petition, averring that the defendant had no property, within their knowledge, elsewhere than in this State, subject to their demand ; but that he had property and monies due him, within the State; and they pray an attachment and writs of garnishment, which, upon the proper affidavit, were issued. The attachment was levied on certain lots in the town of Matagorda ; and, at the Spring Term of the Court, 1852, the plaintiffs recovered judgment for their debt, and a decree, for the sale of the property levied on, for its satisfaction : and the defendant has again brought up the case by writ of error.

By remanding the cause, when formerly before the Court, it was, in effect, determined, that the plaintiff might so amend his petition, as to bring his case within the jurisdiction of the Court; and the cause was remanded for no other purpose, than to afford him that opportunity. The amended petition avers the existence of property of the defendant, within the State; which, it was considered would have been sufficient, had it so appeared in the original petition, when the case was previously before the Court; and which, has since been held, in other cases, sufficient, where, as in this case, the proceeding was in rem, to give the Court jurisdiction. (Campbell v. Wilson, 6 Tex. R. 379.) The amendment obviated the objection to the original petition, by supplying its omission to state a fact necessary to render it apparent, that the Court could rightfully take jurisdiction in the case.

It is objected that a citation was not issued,- upon the amended petition. This objection assumes that the amended petition was the commencement of a new suit; and not, what it manifestly was, a continuation of the former one. The amendment merely supplies the omission in the original petition, of a material averment. It is to be taken and considered with the original petition, both together constituting one pleading, and relating to the same case, originally, though defectively stated. The defendant, having been brought into Court, by-process issued upon the original petition, and the amendment having been made by leave of the Court, he was bound to take notice of it, without the service of process anew. The present was the common case of correcting or perfecting a defective and insufficient statement of the plaintiff’s case ; and in such a case, it has never been held to be necessary to issue a citation anew; if that be ever necessary upon the amendment of a petition, where the defendant has been regularly served with process. It is unnecessary to inquire whether the amendment was of such a character as to have let in any defence which might have arisen at the date of the amendment, as no such defence was interposed.

We are of opinion that there is no error in the judgment: and it is affirmed.

Judgment affirmed.