Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-05-07

OF suit accruing down TO the filing Of
the amendment. In passing upon the
special demurrer setting up limita-
ton, time must be computed from the
acctual OF the cause of action down to
the filing Of the amendment. The
right to set up new cause of action
subject to the payment OF costs, and to
the right OF the defendant TO plead any
defense accruing down to the date OF
the pleading changing the ma
ture OF the suit, 10 settled eyond cues.
ton. 1t will require the lapse OF two
years to bar an action OF this charac-
ter. The property in this case was
seized on December IL, 1882. The
awarded petition was filed December
9, 1882. Held, that the action was not
barred by limitation, and the special
demurrer was enormously sustained.
An attachment Is wrongfully sued out
when the grounds upon which II is
predicated do not exist, and the dc.
fendant in attachment Is entitled 10
recover whatever actual damages he
has sustained by reason of the attach
mente 30 wrongfully sued out. The
petition denies, and alleges to be I'M
true. the grounds alleged in the affi.
davlt for attachment, viz that the
plaintiff was seeking to remove his
property to defraud his creditors. The
suit was for actual damages only, and
alleged the value of the attached prop.
erty to be $l400, which at
the attachment sale brought
but $45. That the appellant
was damaged in large amount by the
unlawful seizure is therefore apparent.
Appellant not claiming damages for
the malicious prosecution OF the al.
tachment suit, the rule that an attach
ment plaintiff, when sued for malici-
Gus attachment, is not confined In his
defense to showing the facts on which
he sued out attachment existed and
amounted to, probable cause, etc, does
not apply. Appellant, upon establish.
ing the other allegations OF his petition
would be entitled to recover actual
damages, whether or not he strictly
complied with the statute regulating
suits by publication. Reversed and
remanded.
Anderson VS.. Boyd, from Ellis coun
ty. Both the origins and the amended
petition set up as the cause of action, q
judgment recovered against A by b
the one asserting that the Judgment
was in force and the other that II was
dormant, did not make different causes
of action, but stated mere legal con
! illusions of the pleader which were L
be determined by the court. Limita
ton ceased therefore to run agains
the judgment when the original petit
ton was fled, and ten years not hav
ing elapsed the cause of action was no
barred. In So Texas, 452, 1t was helC
that under the laws in force when thi
Judgment was obtained, scire facias
might be sued out on judgment
which, though not dormant, had los
its lien. This case IL similar to that
An attorney has no right to receive, o
his own motion, on behalf his client
claims IN satisfaction OF judgment
and the only effect such action OF tn
attorney could have, would be to re
quire of the judgment creditor du
diligence in the collection of tn
} claims and the application of the pre-
ceeds Of the same towards diminish
ing the amount OF his judgment. (2I
, Tex. 1907 Affirmed.
. Weibusch ct al. vs.. Taylor, admins
TRAITOR, from Falls county. That a
, amended petition set up q new caus
OF action, is not fatal objection. II
effect was merely TO subject the plaiI
, tiff to the costs accrued up to this
, time, and admitted all deIenses whic
} might have existed had the new bee
, the original cause of action. 1t Is n
objection 10 petition. under our sy
( tenn of practice, that it asks alternatiy
r relief, II each character of relief sougf
, Ia appropriate to the pleadlngs in II
/ cause. 1t Was properly hel
In 8 Tex. DO that to constitut
/ a fatal variance (between Il
, description Of note in the petitio
. and the note sued on the mlsdescriE
: ton must be such as TO mislead or su
j prise the adverse party, otherwise
should be disregarded by the cour
This has been held to be the rule eve
4 when the pl,intiff has, as in this cas-
/ assumed to give an exact copy of Il
4 pote. The petition in this case omitte
> the words "ofest Of but the pleadiI
|. is ample to show the note sued on an
v the note offered in evidence to be u
: same. (See also AZ Tex, 24S,) III
!. action Of the trial court In adjustir
], costs cannot be, for the first tim
) called in question in this coui
| Hirrnpn