
    Carter v. Reynolds.
    A distinct cause of action cannot be introduced by way of amendment to the petition.
    Where the plaintiff instituted suit upon two judgments for the sum of seven hundred and fifty dollars each, alleged to have been recovered by him against the defendant on two promissory notes for the^um of seven hundred and fifty dollars each, in tho State of Alabama, on the — day of-, 1846, and afterwards amended by striking out that description of the cause of action and by describing it as a judgment recovered by him against the defendant, in the State of Alabama, on the 11th day of May, 1846. for the sum of nineteen hundred and six 42-100 dollars, upon two promissory notes for the sum of seven hundred and seventy-five dollars each, alleging that he was enabled to make tho amendment from a transcript of the record of the proceedings in the court which rendered the judgment in Alabama which was not in his possession at tro time of instituting the suit; there was a judgment by default for the plaintiff, and on error the judgment was reversed and the suit dismissed.
    Error from Anderson. This was a proceeding by attachment, instituted by the defendant in error against the plaintiff in error in tlie District Court on the 21st day of August, 1849. Both plaintiff and defendant were non-residents.
    The original petition set out as tlie cause of action two judgments recovare by the plaintiff against the defendant in the State of Alabama, on tlie — :lv of-, 1S4G, for tlie sum of seven hundred and fifty dollars each, which judg ments, it was alleged, were recovered upon two promissory notes for tlie sia of seven hundred' and fifty dollars each. The petition alleged that the defendant luid property — two negroes — in tlie county of Anderson, and it ".on-tained a prayer that publication should be made, and that the negroes she :Jd be sold, &c.
    One James Reynolds, as agent for tlie plaintiff, made affidavit of the ¡..nth of the petition. The same person in the same capacity made affidavit thau llie defendant “is justly indebted to said plaintiff to at ieast the amount of fifteen, hundred dollars; ” that the defendant was not a resident oE the State, &c,; and tlie affidavit prayed a writ of attachment. Tlie attachment accordingly issued, and was levied on tlie negroes on the 24th day of August of tb.e same year. On tlie 18th of September thereafter a citation issued, directing that the defendant should he cited by publication. On this citation tlie sheriff made the following return :■ “Executed, by having publication made of this writ, according to law, in the Pioneer, a newspaper published in tlie towi. of Palestine, Anderson county, Texas, September 18th, 1849.” At tlie Pall Tom., 1849, that being the first term after the bringing of tlie suit, the cause was continued. At tlie Spring Term, 1850, the plaintiff filed an amended petition, in which he amended by striking out that portion of the original petition which described the cause of action, and inserted in lieu thereof a statement in which lie set out and described as his cause of action a judgment recovered' by him against the defendant in tlie State of Alabama, on the lltli day of May, 184G, for the sum of nineteen hundred and six 42-100 dollars, upon two promissory notes for the sum of seven hundred and seventy-live dollars each. He alleged that he had been enabled to make this amendment from a transcript of tlie record of the proceedings in the court which rendered tho judgment in Alabama which was not in iiis iiossession at the time of instituting his suit, and which was filed and made a part of tlie amended petition. This petition was also filed under oath. There was in the transcript a certificate of tlie publisher of the “Pioneer” that the “annexed citatio.n was regularly published for four successive weeks in said Pioneer.”
    There was a statement of facts as follows: “In the above-entitled cause service of process was made by publication, and the cause heard ex parte; the facts proved on which the judgment is rendered herein are the transcript of the record and proceedings had in a ease between the parties to this suit in Montgomery county, in the State oE Alabama, on tlie lltli May, 1S4G, which transcript is on file among tlie papers of the suit.” This statement of facts was filed tlie next day after the filing of the amended petition. On the same clay the cause was heard; the plaintiff liad leave to file his amended petition'; the defendant failed to appear; the plain tiff waived a jury and submitted the canse to tiie court, who gave judgment for tiie plaintiff for fifteen hundred dollars, and directed the negroes levied on to be sold.
    Tiie defendant brought a writ of error, and assigned for error—
    1st. Tiie want of a sufficient return of service by publication.
    2d. The want of notice of the filing of the amended petition.
    3cl. That the petition as amended does not state the residence of the defendant Carter, or any excuse for not showing it.
    4th. That there is a variance between the record of the judgment of the Circuit Court of Alabama and the judgment described in the petition and tiie judgment rendered herein.
    6th. That there is no prayer for.the writ of attachment in tiie original or amended petition, and that the writ was issued contrary to law.
    6th. That tiie transcript of the judgment of the Circuit Court of Alabama is not authenticated according to law.
    7th. Insufficiency in the affidavit in not stating the amount of indebtedness.
    8th. Insufficiency in the bond, in that it is signed by a person as agent for the plaintiff, but whose authority does not appear.
    
      1\ J. Jennings, for plaintiff in error.
    I. The first error we deem vital, and to show that it is so, it is only necessary to refer to our legislation on tlio subject. (ITart. Dig., arts. C86, 811, 813.)
    The word “time,” in article 811, as it applies to the execution of process of publication, has an unusual force. It would mean at least “ when tiie publication jommcnced and when it ended, so as to show that the publication was after Jie process came to tiie officer’s hands and before the return day.”
    The only item of time contained in this return is its date, and (bat is either an absurdity or worse; for if it shows anything, it is that the publication was made jefore the process came to the sheriff’s hands. (Frosli v. Schlmnpt, 2 Tex. R., 422.)
    II. 'The second error is well assigned. The amendment substituting a new canse of action, if allowable at all, could only have beeu allowed upon new notice.
    III. The fourth error assigned is too apparent for illustration. There is no principle of judicial action upon which the district judge can be sustained in this regard.
    IY. The absence of any prayer for an attachment ill the petition is fatal to that process. It is not supplied by the’prayer to that effect in the affidavit of an assumed agent.
    Y. Tiie “amount claimed” is not stated in the affidavit with any decent approach to certainty. The consequence is of course fatal to the attachment and tiie sale under it.
    YI. The want of evidence of agency is apparent. It is not contained in the affidavit. Tiie recital to that effect is in the certificate of the clerk in introducing the swearing. That does not contain it.
    
      B. A. Beeves, for defendant in error.
    I. The first error assigned by appellant is that the return of the sheriff does not show that the writ was published for four successive weeks.
    The summons was published as required by law. This is shown by the return of the sheriff. Neither the Disti ict Court act of 1846 or that of 1848 required the return of the sheriff, where service is made by publication, to show fiow long ilie writ fiad been published.
    The printer’s affidavit filed in tiie cause shows that tiie citation was published four weeks. This is sufficient evidence of publication. (6 Mon. It., 200. 218, 224.)
    II. '1’lie second error assigned is the want of notice to the defendant of the filing of tiie amended pelition.
    
      1st. The citation on the original petition was published in pursuance of law. No other service or notice was required. (Turner v. Lambeth, 2 Tex. It., 365.)
    2d. The allowance or disallowance of an amendment within the general power of the court is no ground of error. (Chirac «. Reinicker, 11 Wheat. R., 280; Marine Insurance Co. v. Hodgson, 6 Cr. R., 206; Stears v. Barrett, 1 Mass. C. C. R., 153.)
    III. It is further assigned as error that the petition as amended does not state the residence of the defendant Carter or any excuse for not showing it.
    This, if true, would not be a ground to'reverse the judgment of the court below, being merely matter of form. (Hart. Dig., art. 758; Logan v. Clayd, 1 Marsh. H.\ 203.) But the affidavit and petition show that the defendant was a non-resident of the State.
    IY. The fourth assignment of error is: because there is a variance between the record of the judgment of the Circuit Court of Alabama and the judgment described in the petition and the judgment rendered herein.
    1st. If error, it is in favor of the defendant. But the judgment is correo;, as the plaintiff waived surplus of his debt beyond what lie made oatli to in hi? affidavit for (lie attachment. (Guns v. Slaughter, Hard. R., 76; 2 Mars! . I 374; 1 Mon. R., 173.)
    2d. The writ of error dons not lie to reverse a judgment on account cf enrol in favor of the party applying, (Hughes v. Stiekney, 13 Wend. R., 28C; Trabue v. McKittrick, 4 Bibb R., ISO.)
    V. It is next assigned for error that there is no prayer for the writ of attachment jn the original or amended petition, and that the writ was issued contrary to law.
    It is shown by the record that the petition and affidavit in which the attachment was asked for were, filed the same day, and that the plaintiff in his amended petition recognizes the attachment as part of the action. '
    The affidavit for the attachment contains a prayer for that writ. If it had not, the clerk was authorized by the statute to issue the writ upon the affidavit made therefor, (Hart. Dig., art. 25,) and giving bond and filing a petition, as in other eases. (Arts. 28, 46, same law.)
    The balance of this assignment of error is too general. (Hart. Dig., art. 2940.)
    VI. It is also assigned for error that the transcript filed in the cause is not authenticated according to law.
    The assignment is too. general. The authentication seems to he strictly correct.
    VII. Because the affidavit upon which the attachment is predicated does not show the amount the defendant below was indebted to the plaintiff below.
    The affidavit shows that the defendant was indebted in an amount as great as that claimed in the petition. This was sufficient. (Hart. Dig., art. 25; Hughes v. Stiekney, 13 Wend. R., 280; Trabue v. McKittrick, 4 Bibb R., 180; Overley v. Paine, 3 J. J. Marsh. R., 717.)
    VIII. The bond for file attachment was not signed by the plaintiff below, nor by any one showing a proper authority to sign for him.
    It. is to be presumed that proper authority was shown to the clerk. But tile bond would be sufficient, though not signed by the plaintiff. (I-Iart. Dig., art-26.) In Kentucky, an appeal bond by a surety only without a principal is sufficient. (Harrison' v. Tile Bank, 3 j. J. Marsh. R., 376. Also in Indiana. (Thom v. Savage, 1 Blackf. R., 51.) Also in New York. (People v. The Judges of Dulcliess County, 5 Cow. R., 34; Holbrook’s Case, 5 Cow., 35.) ,
    IX. Can a party maintain a writ of error to reverse a judgment when he declines pursuing a remedy given by the statute? (Hart. Dig., art. 783.)
   Wheeler, J.

The proceedings in this case, from their inception to their final consummation in the judgment, are marked with irregularities. There are more grounds than one on which the judgment must he reversed; but as there is one which must Anally dispose of the case, others need not be noticed.

It is manifest that the cause of actiou set out in the original petition and that introduced by the amendment, on which the judgment was rendered, are distinct and wholly different causes of action. The suit was instituted upon two judgments for the sum of seven hundred and fifty dollars each, alleged to have been recovered on two promissory notes, e^ich for the same amount. The amended petition sots out and the judgment is rendered upon one judgment for tile sum of nineteen hundred and six 42-100 dollars, recovered on two promissory notes for the sum of seven hundred and seventy-five dollars each.

. It cannot be pretended that the cause of action sued on and that on which judgment- was rendered are one and the same cause of action. Suit is instituted on one cause of action and judgment rendered on another and different cause of actiou. Such a departure from the due course of judicial proceedings can upon no principle be sustained.

In the decision of this case it is unnecessary to invoke the rigid rules of construction especially applicable to proceedings in suits by attachment, for by no rules which prescribe the course of judicial proceedings can the recovery be maintained. Nor can the original petition be so amended as to constitute it the basis of an adjudication upon the cause of action, admitted and shown by the amended petition and the statement of facts to be the cause of action on •which'the plaintiff bases his right to recover in this ease.

'We '10 therefore of opinion that the judgment be reversed, and that the once >,.ngs be set aside and annulled and the case dismissed.

Reversed and dismissed.  