McCarn v. Rivers

Wright, C. J. The motion to dissolve the attachment should have been overruled. The causes assigned therein are, that the writ issued before any petition was filed, as required by law; that plaintiffs liad withdrawn their original cause of action ; that they had made a new cause ; and that the writ did not correspond with the petition last filed. These causes assume that the original petition was so substantially and fatally defective, and wanting in every requisite, that no writ of attachment could properly issue;, and, in the second place, that the amendment presents a new cause of action — is a departure from the case first made — and is, therefore, a withdrawal of that which was the basis of the writ. The only conceivable objection to the original petition was, that the copies of the account, and note attached, did not show that they had been assigned. The petition itself [406] states they are the property .of plaintiffs, and that the account is theirs by assignment. No copy of the assignment upon the note or account, is attached, however. The amendment attaches the same account, and note, and shows that they were assigned. And it is further to be remarked, that the original petition also claimed upon an account for goods, sold and delivered by plaintiffs themselves to defendant. As to this last cause, therefore, there is no pretence for the position that the petition was fatally defective, and that, at least, was a sufficient basis for the attachment. But there is little ground for claiming that there was “ no petition,” (to use the language of appellee’s argument), as to the other causes. A failure to attach a copy of the instrument, or account, declared on, is a cause of demurrer. Code, section 1750. This is the consequence of such failure, as declared by the express language of the Code. No more fatal consequences should follow, where a copy of the assignment (if any), is omitted. The assumption that plaintiffs, by their amendment, withdrew their original cause of action, and made a new and distinct one, is entirely unfounded. The amendment was entirely legitimate, and followed the case first made. Code, sections 1756-60,2511. Judgment reversed.