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Milam County, Texas

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Milam County Early Court Records


Texas Supreme Court

Cases decided by the Supreme Court of the Republic of Texas, which sat between 1840 and 1844, are reported in James Wilmer Dallam’s Digest of the Laws of Texas: Containing a Full and Complete Compilation of the Land Laws; Together with the Opinions of the Supreme Court, a one-volume reporter.

From 1840 to 1844 Inclusive

Cases Appealed from Milam County, Texas

June Term, 1843

John Gregg v. John York, Dallam 528 (Tex. 1843).

1. Attachment – writ defective – Where the affidavit for an attachment recited that the defendant “resides beyond the jurisdiction of the republic, so that the ordinary process o law cannot be served on him;” and also that the defendant “is so making way with his property that the said plaintiff will be likely to lose his debt;” and the writ recites, “oath having also been made that the said John Gregg absconds or secretes himself, or resides beyond the jurisdiction of the court, so that the ordinary process of law cannot be served against him, or is about to remove his property beyond the jurisdiction of the court,” etc.” Held, that there is a material departure from the affidavit in the writ, by reason of which the writ should have been quashed on motion. Held, also, that the writ is double and uncertain as to the ground on which the plaintiff intended to found his attachment, and is not of such definite and certain character as would enable the defendant to know what he had to answer, so that he might plead thereto a direct and unequivocal plea.

2. – must follow the law strictly – The writ of attachment being a summary remedy created by statute, the statute should be followed in all respects, and all the incidents pertaining to the remedy must be strictly complied with.

In this case York sued out an original attachment against the estate of Gregg, returnable to the spring term of the district court of Milam county, for the sum of three thousand four hundred dollars. At the fall term, 1840, of said court, a judgment was rendered against the defendant, from which said judgment a writ of error was taken to this court. It is not essential to a proper disposition of this cause that we should pronounce in detail upon the various errors assigned, but will confine our opinion to that assignment which sets forth that there is a material variance between the ground of attachment sworn to in the affidavit of York and those recited in the writ of attachment as having been sworn to by him. The ground set forth in the affidavit is, that the said John Gregg “resides beyond the jurisdiction of the court of the republic, so that the ordinary process of law cannot be served upon him;” and further, that the said John Gregg is so making way with his property that the said plaintiff will be likely to lose his debt. The writ describes the affidavit as follows: “Oath having also been made that the said John Gregg absconds or secretes himself, or resides beyond the jurisdiction of the court, so that the ordinary process of law cannot be served against him, or is about to remove his property beyond the jurisdiction of the court,” etc. Ala. Rep. 14. The writ of attachment is a summary remedy created by statute; the statute should be followed in all respects, and all the incidents pertaining to the remedy must be strictly complied with. (See McCord, 312) Inasmuch as there is a material departure from the affidavit in the writ, the latter should have been quashed below when the motion was there made. The writ is also doubled and uncertain as to the ground on which the plaintiff intended to found his attachment, and is not of such a definite and certain character as would enable the defendant to know what he had to answer, so that he might plead thereto a direct and unequivocal plea. (1 Chitty, 285) We are therefore of opinion that the court below erred in refusing to quash the attachment, and that the judgment below be reversed and annulled.

[Opinion by Judge Ochiltree, and concurred in.}

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Created on 26 May 2004 and last revised on ___________ 2004