W. G. Kennedy v. C. H. Morrison; C. H. Morrison v. W. G. Kennedy, 31 Tex. 207

Morrill, C. J. —Kennedy brought suit in the district court of Bastrop county against Morrison, founded upon two promissory notes executed by Morrison to Kennedy or order, and upon an account for personal services, and another account for the use -and hire of two servants. Suit was brought by attachment, which was levied, and property released on special bail. There was no personal service of the petition on defendant. On the trial the defendant moved that the attachment be quashed, because the affidavit was not made according to the requirements of the statute.

The petition states the indebtedness of the defendant with sufficient certainty, giving a full statement of the causes and foundation of such indebtedness, as well as the non-payment of the same. The affidavit is that the “facts and allegations in the petition are true and correct.” The petition nowhere states that the defendant is “justly indebted” to plaintiff in any sum, in hcec verba, and because the affidavit does not contain the word “justly,” before “ indebted,” defendant insisted in the district court and in this court that the same is bad.

It is a rule in pleading, that whenever the same is doubtful or capable of two constructions, the one the more unfavorable to the pleader is to be adopted, and in extraordinary proceedings the rule shall apply with its full force and vigor. The other causes for the extraordinary process in this case are not questioned by the defendant, and therefore the whole is narrowed down to the one question above mentioned, whether the affidavit is defective because it does not state that the defendant is “justly” indebted. In the case of Marshall v.

Alley, 25 Tex., 342, the plaintiff in his affidavit stated that the defendant was “justly indebted” to him in a certain sum, but in the further statement of his cause, showing the grounds of the indebtedness, it appeared that there was really a less sum due than the said amount, and the affidavit was deemed insufficient. In the case of Morgan v. Johnson, 15 Tex., 568, Justice Wheeler says : “It is objected to the judgment that the affidavit to obtain the attachment was insufficient, because it does not state the amount of the indebtedness.

It, however, does state that the defendant is indebted to the plaintiff in the several sums of money mentioned in the petition, and this we think was sufficient. We are not aware that it has ever been held to be necessary to state the sum in the affidavit, where the sum demanded is thus expressly and definitely stated in the petition and the party makes oath that that sum is due.” Taking these two decisions, and giving them their proper construction, the inference is that the pleadings of the plaintiff in attachment, filed under oath, must show conclusively to the court a certain amount justly due.

And whether or not it is justly due does not depend upon the sworn statement of the party of the justness, but upon the proper allegations of the indebtedness, showing the same to be just, and this statement to be under oath, and this we conceive the plaintiff has done. ■ There can be no doubt that any court would, upon demurrer to the petition, decide that the defendant was “justly” indebted to plaintiff agreeably to the statement in the petition. In the case of Livengood v.

Shaw, 10 Mo., 274, the court, upon a similar case to the one at bar, said: “The affidavit alleges that the defendant is indebted, &c., omitting the word ‘justly,’ as prefixed in the statute to the word ‘indebted.’ * * * According to the common legal acceptation of the term indebted, it means justly indebted, legally indebted, indebted according to law, and the superadding of the term justly does not therefore qualify or restrict the word ‘indebted.’” Another exception of the defendant is, that the stamp was placed on the attachment instead of the petition.

The papers show that the petition, affidavit, and attachmejnt were all filed and issued at the same time. The statute of 1862 provides as a stamp duty for every “writ or other original process by which any suit is commenced in any court of record, either law or equity, fifty cents.” It is assumed by the act that a suit is commenced by a “writ or other original process,” and it is believed that this is the case in most of the states.

In this state the act of 18th May, 1846, says, “all civil suits in the district court shall be commenced by petition filed in the office of the clerk of the district court.” [Paschal’s Dig., Art. 1426.] The petition is entirely different from a writ or other process, as said process is obtained by filing the petition. The same statute provides what the style of writs shall be, and the

article closes by stating that the clerk issuing any process shall mark thereon the day on which it issued. [Paschal’s Dig. Art. 1431, Note 543.] It would therefore be impracticable to fix the stamp on the process by which suit is commenced in Texas, unless we confound terms, and call a petition a legal process, and that cannot be done, because the clerk never issues a petition, but files it and issues a process consequent on filing a petition.

But when we take ' into consideration the reason of the law, that it was designed to raise a revenue, and that every suit in law or equity is to be taxed fifty cents for this purpose, and that the canceled stamp was to operate as a receipt for the payment of this tax, it would seem to be a matter of perfect indifférence whether the same be placed either upon the petition, the affidavit, the bond, the citation, or the attachment in this case.

If, as we admit, it is not free from doubt to which of these papers the stamp should be applied, we certainly would not be justified in charging the plaintiff with a violation of duty, and dismiss his cause from court, even if we should decide that the same should have been placed upon the petition or citation. "We conceive that the statute would be complied with if the stamp were placed upon either of the papers, as they all appear to form one transaction.

The defendant also objects to this court taking any jurisdiction of this case, because the plaintiff has not appealed from a final, but, as he says, an interlocutory judgment. If there is any one point decided and re-decided by this court, it is that no appeal will lie from an interlocutory judgment. If a party were allowed to appeal from any and every interlocutory judgment during the pendency of a suit, and thus suspend the progress of the same during the pendency of the appeal, it would be an easy matter for a party unwilling to have a suit tried to have the same postponed indefinitely.

But we must not confound an interlocutory with a final judgment. The definition of an interlocutory judgment is readily suggested by reverting to the original signification of the word, that it is a judgment between something; and, as it not unfrequently happens that a district court enters a number of judgments between the institution and close of a suit, such as continuances and rulings relating to evidence, &c., as each .and all of these are entered between the institution and termination of a suit they are called interlocutory judgments.

The word final, signifying last, is of course the last judgment that the district court enters in a cause, and it is from this judgment that an appeal lies. To apply these facts to the case at bar, when the judge entered up judgment against the defendant, only the plaintiff requested that the sureties on the bail bond of defendant be included in the same.

This request had no reference to any interlocutory judgment in this case, and there were many, but to the final judgment; and, because the plaintiff was denied in his request to have such a final judgment as he wished, he gave notice of appeal, and" in fact it is the only change that the plaintiff seeks in the proceedings, since he obtained the amount of the judgment he sued for.

In appealing from the final or last judgment that was rendered in the cause, whether that judgment should be the adjudication of the court that the defendant go hence, &c., or that the plaintiff have and recover, &c., or that a new trial be granted or refused to a party applying for the same, in either of these cases the last judgment appealed from brings up, for the revision of this court, all of the previous proceedings or interlocutory judgments; and we now come to the final judgment, and the only question at issue on this point is, whether the judgment should have been rendered against all the obligors in the bail bond.

Upon the levy of the attachment the defendant had the option of the two courses to have his property released therefrom.

Article 150, Paschal’s Digest, provides, in substance, that the defendant shall have the right to replevy the property by giving bond with sureties for the amount of the debt or the value of the property, as he may choose, conditioned that he return the specific property in case he be unsuccessful in the suit.

Article 152 provides, that the defendant may at any time before final judgment, upon giving special bail, with good and sufficient sureties for the amount of the debt and interest, recover possession of the property so attached from the person in whose hands it may be; but the giving such special bail shall be deemed an appearance of the defendant, and the suit shall thereupon proceed as in ordinary cases; but, if the plaintiff recover, he shall have judgment against all the obligors in the bail bond. In this case the defendant chose to give the special bail bond, and in so doing he assumed all the consequences.

Had he simply replevied the property, he would not necessarily have, ipso facto, acknowledged service of the petition; but by giving special bail he agreed to acknowledge service of the petition and let the cause proceed as if the attachment had not issued, and he and his sureties further agreed, that whatever judgment should be entered against the defendant should be entered against all the obligors of the bond.

This court therefore, proceeding to render such a judgment as the district court should have rendered, because it seems to this court that the district court erred in not rendering judgment against said W. G-. Kennedy and his sureties on the bail bond, viz, J. D. Hash and A. "W. Moore, it is ordered that said judgment be set aside and reversed, and the judgment be entered against said Kennedy, Hash, and Moore. Ordered accordingly.