Wright v. Ragland , 18 Tex. 289 ( 1857 )

Wheeler, J.

The petition alleges that the defendant has effects and credits in this State and in the county where the suit was brought. This was sufficient to give the Court jurisdiction. (Ward v. Lathrop, 11 Tex. R. 287.) It was a juris, dictional fact, which it was not necessary the plaintiff should verify by affidavit. (Primrose v. Roder, 14 Tex. R. 1.)

It is not a fatal objection to the affidavit, that it does not state the amount of interest due upon the plaintiffs’ demand. It states the principal sum due, and that is a sufficient compliance with the Statute. The amount of interest was capable of being rendered certain by calculation. It was not necessary to make oath of a matter thus capable of being rendered mathematically certain. The interest being a legal incident to the establishment of the plaintiffs’ demand, would follow as a matter of course.

The objection to the affidavit, on the ground of the lapse of time from the making of it to the bringing of the suit, might be fatal, if the attachment had been sued out for a different cause. Such delay as to cast suspicion on the verity of the affidavit, or lead to the supposition that the grounds stated in the affidavit, for asking the attachment, had ceased to exist, might warrant the quashing of the attachment. (Campbell v. Wilson, 6 Tex. R. 379.) But the fact of residence, or non-residence in the State, is not, ordinarily, of so transitory a nature, as to lead to the supposition that it will cease to exist within so brief a space of time as that which elapsed between the making of the affidavit and the filing of it in this case. There is no room to suspect that the affidavit was not true as well when it was filed as when made. The objection to it on this ground, therefore, is not deemed fatal.

The remaining ground of the motion to quash the attachment is, that the writ issued before the giving of the bond. If the fact were so, it would doubtless be a fatal objection ; for the Statute evidently contemplates the giving of the bond before the issuing of the writ. (Hart. Dig. Art. 56; Drake on Attachments, Sec. 120.) But it does not so appear. The bond, it is true, recites that the plaintiffs, naming them, “ have this day sued out an attachment,” &c. And in the case of Hutcheson v. Ross, (2 A. K. Marsh, 349,) to which we arc referred by counsel for the appellant, the Court of Appeals of Kentucky it is true, affirmed the judgment of the Circuit Court quashing an attachment issued by a Justice of the Peace, on the ground that the writ issued before the bond was given; taking a similar recital in the bond as evidence of the fact. We do not so regard it in this case. The affidavit and bond were filed, and the writ issued on the same day. The recital was evidently intended to identify the case in which the bond was given, and not to indicate its order, in point of time, in the proceedings. Nothing more was meant., or is necessarily to be inferred from it, than that it was intended as the bond required to be given in the case, wherein the plaintiffs had instituted proceedings, by filing their petition and making affidavit for the purpose of suing out an attachment; not that the writ had actually been issued by the Clerk already. That is not a necessary, nor, when it is considered that it would have involved the violation of duty by the Clerk, is it a probable conclusion.

We are of opinion, therefore, that the objection is not well taken, and that there was no sufficient cause for quashing the attachment. The judgment must, therefore, be reversed, and the cause remanded.

Reversed and remanded.