Munzenheimer & Klein v. Manhattan Cloak & Suit Co.

STAYTON, Chief Justice. On September 17,1887, appellee brought this action to recove!' a debt which the petition alleged would become due on January 1, 1888; and to procure writ of attachment affidavit was made to which no objection was made except that it was claimed to be defective because it did not state when the debt would become due. A motion to quash the attachment on that ground was made, which the court overruled. In this there was no error. Willis v. Mooring, 63 Texas, 340. It is further urged that the attachment should have been quashed on the ground that the affidavit did not identify the cause in which it was filed. [320] The affidavit showed that it was made in the case of the “Manhattan Cloak and Suit Company v. Munzenheimer & Klein,” and was sworn to by a person stating that he wa° “agent and attorney for plaintiff.” The affidavit was filed on the same day as the petition and attachment bond, in the same court, and the file shows the correct number of the cause. The motion stated that the affidavit was on a paper separate from the petition, but the bill of exceptions does not show that this was true. That the affidavit was filed in this cause is shown .with all reasonable certainty, whether written on the same paper as the petition or not. The attachment bond gave the. names of the persons comprising the plaintiff firm, and was conditioned “that the above bound Manhattan Cloak and Suit Company, plaintiff in attachment against the said Munzenheimer & Klein, will prosecute,” etc., and it is claimed that the bond was insufficient because the names of all the persons comprising the plaintiff firm were not set out in full in the latter part of the bond. This was not necessary, for the bond bound every person who was a member of the plaintiff firm. The clerk in issuing the writ of attachment failed to fill up a blank left wherein to state the sum to secure which a levy was directed, and on motion the court permitted the writ to be amended in this respect after it had been levied on property already levied upon in other cases by the same officer.- It is now urged that the court erred in permitting the amendment and in not abating the writ because it did not state the sum for which the levy was to be made. The statute directs that the writ shall “ command him (the officer to whom directed) to attach so much of the property of the defendant as shall be sufficient to satisfy the demand of the plaintiff-and the probable costs of the suit;” and the form given provides for the-insertion of a command to attach so much of the property of the defendant as shall be of value sufficient to make the sum of-dollars (sum claimed) and the probable costs of suit. This is evidently required in order that the officer who is to execute the writ may know from it how much property he is required to seize, and without this information he may do injustice to a plaintiff by seizing less property than will pay the debt, or he may do injustice to defendant by an excessive levy. The officer to whom the writ is directed may ascertain from the same source as does the officer who issues the writ the amount of the demand, but the statutes do not seem to contemplate that he shall seek such information outside of the writ. Ko officer ought to assume the responsibility of executing a writ of attachment which does not give him this information, and it may be that [321] a levy under such a writ ought generally to be held inoperative, at least as to third persons. Delivered January 23, 1891. Under the liberal rules as to amendment, even of writs of attachment, which have prevailed in this State, we are of opinion, however, that the court did not err, under the facts of this case, in permitting the writ to be amended as it was; and it may be that the levy should be given effect only from the time the writ was amended. When the officer levied the writ in this case there was no interference with the possession of the property, which was in his hands as sheriff by reason of levies of other writs, and no injury could result to appellants from the amendment. The writ was valid at least from the time it was amended, and as the property was in the possession of the sheriff rightfully, without reference to the writ sued out by appellee, we see no good reason why that possession, recognized by the sheriff as under the writ'in question, should not be recognized as a valid levy from the time the writ was amended as against all persons. We find no error in the judgment and it will be affirmed. Affirmed.