McClanahan v. Brack

Simrall, J.: The “cause” for the attachment, was that McClanahan, the debtor, had assigned a part of his property, and was about to dispose of part thereof, with intent to give an unfair preference to some of his creditors.” The affidavit and bond are dated the 24th of November, 1866. The attachment was issued the 12th of December, 1866. The writ directed the sheriff to attach the debtor’s property, etc., so as to compel his appearance at the court, to be held on the seventh Monday after the fourth Monday of March, 1866. The writ, in reciting the affidavit, in the final word uses the pronoun “them” instead of “creditors,” “with intent to give an unfair advantage to some of them.” Personal service was had upon the defendant. The papers were returned into the circuit court, held on the seventh Monday after the fourth Monday of March, 1867, showing that a levy had been made by the sheriff, on the 12th of December, [257] 1866, and that the property had been replevied. The plaintiff filed his declaration at the May term, 1867. The case is brought into this court to review the decision of the circuit court, overruling a motion to quash the attachment. The first cause assigned in the motion to quash is not well taken. The affidavit preserves, almost literally, the terms of the fifth subdivision of article 2 of the attachment law. The objection taken to the proceedings are, that the affidavit, as recited in the attachment, does not correspond with that actually made. The affidavit, bond and the writ are of “the record.” No principle is better settled, or more salutary to the just and wholesome administration of justice, than that the whole record must be read and construed together. If one' part makes it manifest that a word omitted or inserted in another part was a clerical error, it should be so considered. That was distinctly recognized in Lovelady v. Hoskins, 6 Smedes & Marsh. 416. There, the variance was between the affidavit and the recital of it in the writ. The attachment writ read, the “ plaintiffs were concealing;” the affidavit was, the “defendants were,” etc. This was a mere clerical error, which appeared “by looking at the whole record.” In Byrd v. Hopkins, 8 Smedes & Marsh., the writ did not name the “court,” to which defendant must appear, but the bond, another part of the record, correctly recited the court, and the “circuit” court was the only one that had jurisdiction. In Houston v. Belcher, 12 Smedes & Marsh. 515, a similar error was in the bond, but for the same reason it did not prevail. In Lawrence v. Featherston, 10 ib. 347, the condition of the bond recited the debt as $10 more than the affidavit. But it was declared that the affidavit must control, it. being the foundation of the whole proceeding. The doctrine of these cases disposes of this point. There is more difficulty as to the effect of the interval of time, between the dates of the affidavit and bond, and the issuance of the attachment. There is force in the argument of counsel, that the condition of things may be different on [258] the twelfth of December when the attachment was sued out, from what they were on the twenty-fourth of November, when the affidavit and bond were made. The execution of the bond is a condition precedent to the issuance of the writ. The recital, that the creditor “hath the day of the date thereof prayed an attachment, etc., and obtained the same returnable,” etc., does not mean that the writ has actually been perfected, but rather that he has obtained a “right” to its issuance, and upon executing the bond may demand it. The writ emanates after bond sealed, may it issue the next, day, the next week or the next month ? How long after the affidavit and bond had been made ? It is manifest that the affidavit and bond are not required to be contemporary acts. The issue provided for in the fourteenth artiole.of the attachment law, “ traversing the truth of the causes of the attachment,” puts in controversy the rightfulness of the proceeding in issuing the attachment. “ The jury are to try and determine whether the attachment was wrongfully sued out. ” Such a plea puts the plaintiff on the proof of the truth of the causes as existing at the time the writ was actually issued. If, therefore, although on the date of the preliminary proceedings, the “cause may have existed,” yet, when afterward the writ had been sued out, # the intention and purposes of the debtor had been abandoned, and that “cause” no longer existed, or had been abandoned, the debtor may avail himself of the benefit of the altered condition of things by the plea in abatement. In Graham v. Bradley, 7 Mo. 283, the objection was, that an interval of nine or ten days intervened between the affidavit and the issuance of the writ. The mode of taking advantage of it, said the court, was by plea, which would have put in issue the truth of the affidavit, at the time of issuing the writ. It was observed by the court that there would often be difference in the dates of the several proceedings. So, too, in Campbell v. Wilson, 6 Texas, 395, the affidavit was made on the sixth, bond executed on the seventh and filed on the ninth, and attachment sued out the eleventh of the month, [259] yet the proceedings were sustained. In Wright v. Ragland, 18 Texas, 293, the affidavit was sworn to on the ninth of June, bond and the attachment dated the third of July.' The motion to quash was because of the lapse of time from the date of the affidavit to the bringing of the suit. The court say, the “delay must be such as to cast suspicion on the verity of the transaction, or lead to the supposition, that the grounds stated in the affidavit had ceased to exist.” If there be such delay between the several steps in the proceedings as fairly to induce the presumption that the process of the court is abused, or used oppressively, or that the “cause” of attachment may not be true when the writ is sued out, we think that the whole proceedings upon motion may be set aside. This rests much in discretion, depending on the special circumstances of the case. Unless, however, there are these strong features to warrant this peremptory disposition of the suit, the propriety of the proceedings ought to be tested by plea in abatement. The recitals in the bond and attachment are for the purposes of identity, so as to connect the affidavit, bond and writ together as parts of the same suit, rather than to indicate the order in point of time in the proceedings. The insertion of the year “ 1866,’.’ in the writ, instead of “1867,” is a clerical error, cured by other parts of the record and covered by the authorities referred to. This, however, was not assigned as reason for quashal of the writ. If it had been, the circuit court could have cured the defect by amendment, under art. 70, p. 490, Code. “ Such amendment may be made upon any application to set aside or quash the writ.” This is a reason why the point ought not to be pressed in this court. We have looked at the case in 3 N. H. 70, quoted by counsel, and also into three of the cases there referred to. In all the cases parol evidence was offered to show the mistake, which was inadmissible. 2 Johns. 190; 6 ib. 309, were cases, where a “term or more intervened between the teste and return of the writs.” They were, therefore, held to be void, and not amendable. The statute above [260] quoted expressly declares, the writ shall not be “ void ” for the omission of a matter required tobe “inserted,” but only “irregular” and capable of “amendment.” But this writ was tested the 12th December, 1866, and was returned to the proper term of the court next ensuing; nor had judgment been taken against defendant before he appeared and made his motion. Dundridge v. Stephens, 12 Smedes & Marsh. 724. In Harrison v. Agricultural Bank, the same exception was taken to the writ as here, but it held, that as the process'was amendable, a motion to quash was such an-appearance as dispensed with the necessity to amend. The judgment is affirmed.