Primrose v. Roden

Wheeler, J. The affidavit, made to obtain the attachment, is in strict conformity to the statute, (Hart. Dig. Art. 25,) but it is insisted that the plaintiff should have made affidavit to the truth of the matter set forth in his petition, as prescribed in Art. 795 of the Digest. In the case of Schrimpf v. McArdle (13 Tex. R. 368) we intimated the opinion that the Act regulating attachments did not expressly, nor by necessary implication, repeal the provision of the statute last cited ; but that an affidavit of the truth of the material, substantive matter set forth [3] in the petition would be a virtual compliance with the statute. Whether the intimation was correct as to the question of repeal or not, we think it free from doubt that it is so upon the other point. But it is said the affidavit is insufficient in that it does not verify the averment of the petition as to the residence of the defendant in the county, and that the fact of such residence is necessary to give the Court jurisdiction. But it is evident that this is not a necessary averment to give the Court jurisdiction in suits by attachment; for one of the cases provided for in the statute is that of the non-residence of the defendant. Where he has a residence in the State, he must be sued in the county of his residence, as well in suits by attachment as in other cases ; and if sued elsewhere, he may except, or plead in abatement of the suit. But the jurisdiction of the Court in such a case can only be defeated by excepting, or pleading the fact of his residence in another county within the State. By the “ matter set forth in his petition,” (Hart. Dig. Art. 795,) the statute, we think, intended the material, issuable facts alleged as constituting the plaintiff’s right to a recovery on the merits of his case, and not such matters as are only issuable, or available to the defendant by pleading in abatement; the facts, in which the plaintiff’s right and the injury he has sustained by reason of acts done or omitted to be done by the' defendant, consist; and not the fact of the defendant’s residence, or other matter of abatement or exception merely. The affidavit is an affirmation of the truth of all the material facts which constitute the plaintiff’s cause of action. We are of opinion, therefore, that it is a compliance with the requirement of the statute; and consequently, that the Court erred in quashing the attachment and dismissing the case ; .and this will dispense with the necessity of considering the question of the right of the defendant to retain the case on his plea in reconvention, which will be reinstated of course upon remanding the case. The judgment is reversed and the cause remanded. Reversed and remanded.