Stoddart v. McMahan

Citations

• 35 Tex. 267

Syllabus

<p>1. A writ of attachment need not be more specific or descriptive than the form prescribed by the statute.</p> <p>8. Important distinctions are taken in this case between original attachments on which the jurisdiction depends, on the one hand, and mere auxiliary attachments on the other, with respect to the certainty necessary in the sheriff’s return of a levy.</p> <p>3. In support of a sheriff’s return of the levy of a mere auxiliary attachment on which no question of jurisdiction is dependent, courts should indulge presumptions which are not admissible in favor of original attachments upon which the jurisdiction is dependent. The cases of Meuley v. Zeigler, 23 Texas, 88, and Tiffany v. Glover, 3 Iowa, 387, overruled in so far as they ignore this distinction.</p> <p>4. Against a defendant already in court by personal service of citation, an auxiliary attachment was sued out, and the sheriff’s return of the same was in part as follows: “Received this writ May 18,1869, and executed the same May 24, 1869, by attaching lots number three and. four in block four hundred and ninety-eight. * * * The aforesaid property was pointed out to me by the plaintiff’s attorney as the property of ” the defendant. It is objected that this return does not state that the attached property was the property of the defendant. Held, that as this writ is only auxiliary process, the return is sufficient; but had it been the original process, and the jurisdiction dependent upon it, such a return would not suffice.</p> <p>5. In a suit on notes against S. and two others as partners, S. denied his partnership, and the plaintiff, to sustain his side of the issue, proved that shortly before the execution of the notes, articles of partnership were executed by all of the defendants, and that they recited that 8. contributed $15,000 to the capital, and was to be entitled to one-half or one-third of the net proceeds of the business. And as further proof, plaintiff introduced a deed made by S., convey