John H. Fowler v. Ira S. Poor, 1 Dallam 401

HEMPHILL, Chief Justice. The plaintiff having filed the affidavit and executed the bond required.by law, the clerk of the District Court for the County of Bed River issued a writ of attachment against the property of the defendant on the 17th of April, 1840, but did not file his petition until the 27th of July afterwards. Among other matters; the defendant in his answer pleads that the plaintiff ought not to maintain his action, because the petition was not filed until after the issuing of the attachment. The plea was sustained by the court, and from that decision an appeal has been taken.

The counsel for the appellant insisted strenuously that in taking out a writ of attachment nothing more was necessary than the bond and affidavit required by the act regulating attachments, approved January 28, 1839. Were our attention confined to that statute alone, that conclusion might readily be adopted. But suit by attachment is a civil action; and on examining and comparing the various statutes of this Republic in relation to proceedings in civil suits, it will be found that in taking out any writ or process the plaintiff is required to file his petition.

The first statute in the order of time is the “Act establishing the jurisdiction and powers of the district courts,” approved December 22, 1836, volume 1, page 198, of Laws of Texas. A portion of

section 8 of this act is expressed in the following terms: “It shall be the duty of the plaintiff or his attorney, in taking out a writ or process, to file his petition with a full and clear statement of the names of the parties, whether plaintiff or defendant, with the cause of action and the nature of relief which he requests of the court,” etc.

It may be argued that the terms “writ or process,” as used in the above statute, refer only to the summons issued in ordinary civil suits; but the expressions are general and sufficiently broad to embrace all processes of every description which may be obtained at the commencement of a civil action.

By this provision of the above act, then, it seems that a petition is a necessary prerequisite to the taking out of any writ or process; and according to the well established principles of construction, this provision must remain in full force and effect until repealed in express words by some subsequent statute, or the matter contained in some subsequent statute be so clearly repugnant thereto that it necessarily implies a negative of-the same.

It is our duty to construe all statutes in relation to the same subject matter, which do not negative one another, in such a manner that they may all stand together and have concurrent efficacy. According to these principles of construction, the act regulating attachments does not negative the necessity of a petition; but requires in addition thereto the affidavit and bond of the plaintiff, before an arbitrary process will be issued to seize on the propert}r of the defendant.

An opposite construction would not only impair the harmony of proceedings in our courts in civil actions, but would operate very oppressively on the defendant in attachment. In ordinary suits the petition would inform him of the cause of action, and he could prepare his defense; but when dragged into court by his property, ignorant of the nature of the demands against him, until they are developed in the progress of the trial, he would be taken by surprise and rendered wholly defenseless.

Our system of proceedings in civil suits differs from that known in England and adopted in most of the States of the United States. There, the writ generally precedes the declaration. No injustice is committed by taking out the attachment in the first place, because long before the trial the declaration will inform the defendant of the nature of the plaintiff’s demand. Here the petition is required to precede or be concurrent with the writ or process and no other method of instructing the court, the jury or the defendant in the nature of the plaintiff’s cause of action has been provided by law.

The mode of conducting proceedings in civil suits by petition and answer is so highly appreciated by the legislative power of this Republic, that at the last session of Congress it was expressly enacted, “that the adoption of the common law shall not be construed to adopt the common law system of pleading; but the proceedings in all civil suits shall as heretofore be conducted by petition and answer.” Vide Laws of 4th Congress, p. 88.

Here is strong legislative declaration that the proceedings in civil suits had been heretofore commenced by petition, and that they shall be conducted in the same manner for the future. This law was in operation some time before the attachment issued in this case. Upon the examination of all the laws in relation to the subject, we are of opinion that the court below did not err in sustaining the plea of the defendant, and it is ordered and decreed that the judgment of the court below be affirmed. Affirmed. Judges Terrell and Scurry concur; Judges Baylor and Hutchinson dissent.