Focke v. Waters

Citations

• 67 Tex. 173
• 2 S.W. 363
• 1886 Tex. LEXIS 632

Syllabus

<p>L Attchment.—No presumption will be indulged to support an attachment; every uncertainty therein must be explained, if at all, by the proceedings themselves.</p> <p>2. Same—Dissolving the Writ oe.—Suit was brought on account in favor of John Pocke, Henry Wilkens and Herman Lange, constituting the firm of Pocke, Wilkens & Lange. An attachment issued in the case on an affidavit that defendants were indebted to John Pocke, John Wilkens and Herman Lange, composing the firm of Pocke, Wilkens & Lange, upon an account having the same amount due, and the same amount to become due, as stated in the petition. ■ Held:</p> <p>(1) No presumption can be indulged to sustain proceedings by attachment.</p> <p>(2) The petition being based on a demand due a firm composed of members designated therein, and the affidavit on a demand alleged to be due a firm composed of other and different individuals, the variance was fatal to the proceedings. The fact that the style of the firm in each instance was the same is immaterial.</p> <p>(3) The petition can be looked to in order to cure a defective affidavit only, and not when the affidavit is complete and contradicts important averments in the petition; even if the petition be looked to in this case, the contradiction between the petition and affidavit would remain unexplained.</p> <p>3. Same.—It is only where a plaintiff’s entire right to sue depends on his right to maintain an attachment that the suit must be dismissed with the dissolution of the attachment.</p>