Sweetzer, Pembroke & Co. v. H. B. Claflin & Co. ( 1891 )

This is the second appeal in this cause. A statement of the case as it then appeared will be found in the opinion upon the first appeal. See Sweetzer, Pembroke Co. v. Claflin Co.,74 Tex. 667.

Upon the return of the cause to the District Court the plaintiffs, H. B. Claflin Co., amended their petition so as to charge that the note of Dreben Lewis for $8746.29, which is copied in the said opinion, was made payable to the order of themselves and was thereafter indorsed by them in blank and delivered to Isaac Lewis, and that it was afterward indorsed and delivered by said Lewis to plaintiffs.

The allegations in regard to the note contained in the third and last amended petition are in every respect the same as those contained in the original petition, on which the attachment was sued out, except in the following particulars: In the original petition the note is charged to have been "made, executed, delivered, and indorsed to said plaintiffs," and "indorsed as follows, to-wit, Dreben Lewis." The note is correctly copied in each petition.

An attachment was sued out when the original petition was filed by the plaintiffs H. B. Claflin Co. against the defendants Dreben Lewis, upon several debts, including the above described note, upon an affidavit which was in every respect accurate and correct.

After plaintiffs had filed their amendment correcting their allegations in respect to the delivery and indorsements of the above described note, Sweetzer, Pembroke Co. and others, who had sued out attachments against Dreben Lewis and intervened in this cause, charging that the above described note was fraudulent, filed a motion to quash the attachment on the following ground: "Because the cause of action presented by the third amended petition to the extent of the note for $8746.29 is a new, different, and distinct cause of action, in this, that the note sued on originally is shown to have been executed and delivered to the plaintiffs directly, and this now sued on by amendment is alleged to have been executed and delivered to one I. Lewis; wherefore they say there is no affidavit nor bond to support attachment therefor."

The court, upon the motion of the plaintiffs, struck the motion to quash from the files, and its action in this respect is now complained of.

We do not think that the objection that the amendment set up a different cause of action can be maintained. The same debt is accurately and fully described in each pleading. The only difference in the allegations is in regard to the means by which the plaintiffs became the owners of the note. We think that the note was correctly treated by the court, in all of its rulings on the issue, as being the identical debt described in each one of plaintiffs' pleadings, notwithstanding the change of their allegations in regard to the manner of its acquisition by them. The plaintiffs had the right, as against the defendants, to amend their pleadings as they did without impairing the validity of the attachment proceedings. It has been declared by this court that intervenors in attachment suits can not defeat the attachment for irregularities in the proceedings. Senney v. Schluter, 62 Tex. 328. If in fact a new debt had been substituted by amendment for the one upon which the attachment was sued out, the intervenors would have been entitled to protection against such debt in the final judgment, if their case was made out in other respects.

It appears that the defendants at one time filed an answer in the cause, which they subsequently withdrew. A bill of exceptions taken by the appellants shows that at the trial they offered to read in evidence such abandoned pleadings. It appears that they had attached copies of said pleadings to interrogatories filed by them to the defendant Dreben, but what the interrogatories were does not in any manner appear. The commissioner in his return stated that the witness answered the interrogatories as follows, "I don't know," but refused to sign his name to the answer. If it could be admitted that the confessions of the defendant procured in any manner by the intervenors could be used by them against the plaintiffs, we still are not able to say from this incomplete and obscure statement that an error was committed in refusing the evidence.

We find no error in the proceedings, and the judgment is affirmed.

Affirmed.

Delivered December 11, 1891.