Awalt v. Schooler , 61 Tex. Civ. App. 91 ( 1910 )

This is an attachment suit, the plaintiff's cause of action being one of debt evidenced by five promissory notes. As authorized by statute the suit was filed before either note was due, a writ of attachment being sued out at the same time. The attachment was levied upon certain real estate and personal property. After maturity of the notes there was a trial which resulted in a judgment for the plaintiff for his debt, interest and attorney's fees, amounting in the aggregate to $700.70, and the defendant has appealed.

We overrule all the assignments of error, except the fifth, which complains of so much of the decree as foreclosed an attachment lien in excess of $623.30, that being the amount for which the writ of attachment was sued out. The decree forecloses the attachment lien for the full amount of the judgment, which constitutes manifest error, and the judgment will be corrected in that respect.

We shall not discuss in detail the other assignments of error. We think the affidavit upon which the attachment issued stated a definite and specific amount of indebtedness, and no error was committed in overruling the motion to quash the attachment. There was no plea charging that the officer before whom the affidavit was made had made a false certificate or jurat; and, therefore, no error was committed in refusing to permit appellant to prove that the plaintiff J. L. Schooler, who made the affidavit, did not do so as certified to by the efficer. The decree did not foreclose the lien upon the real estate, but upon the personal property only. It was not necessary for the plaintiff to file a pleading alleging that the attachment had been issued and levied upon the property (Frank v. Brown Hardware Company, 10 Texas Civ. App. 430[10 Tex. Civ. App. 430], 31 S.W. 65).

The judgment is reformed so as to limit the foreclosure of the attachment lien to $623.30; but as the court below would no doubt have corrected that error, if attention had been called to it, we do not think any costs should be taxed against appellees, and therefore, the costs of the appeal will be taxed against appellant, and, as reformed, the judgment will be affirmed.

Reformed and affirmed.