S. Dalsheimer & Co. v. McDaniel ( 1891 )

Cooper, J.,

delivered the opinion of the court.

The appellants sued out an attachment before a justice of the peace of Amite county against the appellee for the recovery of a debt of $703.91 alleged to be due and unpaid. Upon filing the declaration and the account upon which suit was brought, it appeared that nearly six hundred dollars of the sum claimed was not due when the attachment was issued. The defendant thereupon moved the court to quash the writ and affidavit because they were for a debt due, while the plaintiffs, by their declaration, sought to recover upon a debt not due when the proceedings were commenced. The plaintiffs then moved the court for leave to amend the affidavit and writ so as to show that the attachment was for a debt not due, and to dismiss the suit as to so much of the account sued on as was for items past due when the attachment was sued out. The court overruled the plaintiff’s motion for leave to amend, sustained the defendant’s motion to quash, and dismissed the suit.

The amendment should have been permitted, and, being made, the motion to quash should have been overruled. The plaintiffs only sought to do by amendment what they might originally have done. They were proceeding against the defendant on the same demand throughout, and the fault in the affidavit was but a “ defect ” within the meaning of § 2464 of the code, and was amendable as such.

The judgment is reversed and cause remanded.