Bamberger, Bloom & Co. v. Merchants' & Farmers' Bank ( 1895 )

Woods, J.,

delivered the opinion of the court.

The entire evidence in this case, taken together and fairly ■considered, satisfies us that, in no proper sense, was the attached debtor ‘ ‘ about to remove himself or his property out of this state.” -He was a merchant whose business was not pi’osperous, and had been unsatisfactory, because of its unsuccessfulness, for several months. He was, therefore, casting about for a new location, and was desirous to make a change, and to remove to another and better field in another state. Months before the attachment was taken out, he had requested one of the witnesses for-the appellee to look about in the state of Texas, and, if possible, find a new location, where he might do a more successful business. He had opened a correspondence, with friends in New Orleans, La., with a view to removing to that state if satisfactory arrangements could be made so to do. The evidence clearly shows that he was dissatisfied with his want, of success at Carrollton, and that he contemplated leaving that, place and this state, if he could find a suitable place offering promise of success in business in Texas, or if he could procure the place in New Orleans which he desired. He was contemplating removal from this state, and had been so doing for several months prior to the taking out of the attachment, but this contemplated removal was altogether conditional. He might go to Texas or Louisiana, or he might not. He was conducting his-business in Carrollton in the xisual way — just as he had always, done. He was making no preparations for removal, even of himself, much less his property. He was not on the eve of removal to any place, and he was not, therefore, about to remove-himself from this state.

The peremptory instruction for the attaching creditor should not have been given, and the fourth instruction asked by the. intervenors, which, in effect, was a peremptory charge, should have been given.

Reversed a/nd remanded.