Citation Numbers： 40 S.W. 629, 16 Tex. Civ. App. 351, 1897 Tex. App. LEXIS 218
Judges： Fly
Filed Date： 5/5/1897
Status： Precedential
Modified Date： 11/15/2024
Appellants sued appellee on a note for $300, which they alleged that they and appellee (they as sureties and he as principal) executed to Frank Stelzig, and that the sureties had fully paid off the same. At the same time they obtained a writ of attachment and levied it on the property of appellee. On motion of appellee the affidavit for attachment was quashed, and judgment for the debt was rendered in favor of appellants. They have appealed, the sole ground of error being the action of the court in quashing the affidavit and consequent refusal to foreclose the attachment lien.
The affidavit was made by A.T. Thanheiser, one of the appellants, and the ground upon which it was quashed was that, after describing the debt as being due to the plaintiffs, it concluded: "And that plaintiff will probably lose his debt unless such attachment be issued." It will be seen that the defect consisted in using "plaintiff" instead of "plaintiffs," and "his" instead of "their."
If this court were unhampered, it would unhesitatingly pronounce the defect an immaterial one, because it is plain that it is a mere clerical error that could in nowise impair the rights of appellee under the statute, and is a substantial compliance with the statute. But we conclude that the defect is one which in analogous cases the Supreme Court has declared to be fatal to the affidavit. In the cases of Perrill v. Kaufman,
The judgment will be affirmed.
Affirmed.