H. Seligson & Co. v. Hobby & Post

Bonner, Associate Justice. This was a suit by attachment, under article 154 of Paschal’s Digest, upon a note not due. The petition was in the usual form as upon a note overdue, and the only intimation that the cause of action had not matured at the time of suit brought, arises from the copy of the note set out in the pleadings. Exceptions to the' pleadings of the plaintiffs were sustained, and they declining to amend, judgment final was rendered for the defendants. After a careful examination of the case, we are constrained to the opinion that it comes within the ruling of Cox v. Eeinhardt, 41 Tex., 591, and upon the authority of that case, the judgment below must be affirmed. It was therein said, that “the fact that the debt lacked only four days at most of being due when the suit was brought, and as no action of the court could be taken in the case beyond the seizure of the property before the debt would be due, and therefore it cannot be seen that any material injury has resulted to the debtor from the defects in the petition and affidavit for attachment, does not, in our opinion, warrant a [150] departure from the long and well established rule requiring a strict observance of all the requirements of the law by those who are seeking to enforce their demands by the aid of this stringent and harsh writ.” Under our practice, the petition should state the plaintiffs’ cause of action by distinct averments, and not leave it to the court to deduce the existence of one fact from the statement of another. (Malone v. Craig and Lipscomb v. Bryan, 22 Tex., 609.) The plaintiffs having declined to amend after exceptions sustained, the rights of the parties depend upon the pleadings as then presented and adjudicated, and this opinion is thus limited. The attachment being only an ancillary process to secure the debt, must abide the judgment upon the sufficiency of the pleadings. It is, therefore, not necessary to determine the other question, as to the validity of the second and third writs of attachment issued, and no opinion is given upon this point. Judgment affirmed. Affirmed.