Brasher, Reichardt Co. brought this suit, by attachment, against the appellee, in the Justice Court at Beaumont, on December 29, 1891. There was no written pleading, and the entry on the justice's docket was as follows: "Suit upon account for merchandise for $171.08, of date ______, due as stated in affidavit for attachment. Interest at ______. Filed 29th day of December, 1891."
A verified itemized account was filed by the plaintiff on the same day, the affidavit verifying the account stating "that it is now due," etc.
The writ of attachment was issued and levied upon goods of the defendant, which were afterwards sold on application as perishable property. The total proceeds were $135.50, the costs of sale and care of property being $26.40, which should be deducted.
Defendant moved to quash the attachment on account of variance between the affidavit to the account and the affidavit for attachment. This motion was overruled by the justice of the peace, and judgment was rendered in favor of plaintiffs for their debt, with foreclosure. Upon appeal to the District Court the defendant renewed his motion to quash, and the court sustained it. Judgment was rendered in favor of the plaintiffs for their debt; but they have appealed from the ruling of the court quashing their attachment.
The motion ought to have been overruled. The entry on the justice's docket is the statement of the cause of action, and there is no variance between it and the affidavit for attachment. The affidavit to the account was only evidence, and not a pleading in the suit.
The judgment of the court below quashing the attachment will be reversed, and judgment will now here be rendered in favor of the plaintiffs, foreclosing the attaching lien and ordering the money in the registry of the court below to be applied to plaintiffs' debt.
Reversed and rendered. *Page 692