Stewart v. Heidenheimer Bros.

Citations

• 55 Tex. 644
• 1881 Tex. LEXIS 161

Syllabus

<p>1. Attachment — Variance.— An affidavit for attachment stated the amount of the debt, which was three dollars less than the amount stated in the petition, which was not verified by affidavit; the amount stated in the affidavit corresponded with the amount stated in the writ which was issued. Held, that the variance was not fatal.</p> <p>3. Appeal—Ajbttdavit in forma pauperis.— Appellant made his affidavit before the county judge of the county in which judgment in the district court had been rendered against him, that he was unable to pay the costs which had accrued in the district court, and which might thereafter accrue in the supreme court in the prosecution of his appeal; the affidavit did not state an inability to pay any part of the costs less than the whole. This affidavit was, nine days after the term of the district court adjourned, filed in the district court. Six months thereafter, in a contest between the parties in the county court over the truth of the affidavit, it was adjudged that appellant had sufficient means to have given bond for costs. On motion to dismiss the appeal, held,</p> <p>(1) The affidavit was sufficient.</p> <p>(3) That the affidavit was made, and filed without notice, to the opposing party, constituted no cause for dismissing the appeal.</p> <p>(3) The affidavit having been filed in ample time for a contest involving its truth to have been made before the time expired for perfecting the appeal, the contest should have begun at that time.</p> <p>(4) An affidavit in forma pauperis that affiant is unable to pay the costs, etc., without adding “ or any part thereof,” is sufficient.</p>