7 Wyo. 303 | Wyo. | 1898
[After stating the case as above] It is maintained by defendant that the affidavit in this case is not only insufficient but void and in effect no affidavit at all, and therefore not amendable.
Under our code of civil procedure all actions are commenced by filing a petition and precipe for summons, and attachment proceedings are always ancillary. The same particularity of statement in the affidavit need not therefore be required as in cases where the attachment is the basis of the action, and whereby the court obtains jurisdiction. Nevertheless it is absolutely essential that there shall be filed with the clerk an affidavit of either the plaintiff, his agent, or his attorney before an order of attachment is made, or else the order is . entirely unauthorized, and the attachment must be discharged upon motion. There need be nothing very formal or technical to constitute a paper an affidavit. But there are certain essentials without which it is not an- affidavit. £< An affidavit is a written statement in the name of a person called the affiant or deponent, by whom it is voluntarily signed and
An oath reduced to writing, sworn to before some officer who has authority to administer it. Bouv. Law Dic., 79. An affidavit is an oath in writing, signed by the party deposing, sworn before, and attested by him who hath authority to administer the same. 1 Bac. Ab., 146.
The supreme court of Illinois in sustaining a proceeding upon an affidavit which was very informal, say, ‘£ An affidavit is simply a declaration, on oath in writing, sworn to by a party before some person who has authority under the law to administer oaths. ’ ’ Harris v. Lester, 80 Ill., 311. Leaving out of view, therefore, all questions of form, the caption or title, signature of the deponent, the jurat, signature of the officer, etc., it is evident that an affidavit required to be “ filed, ’ ’ must be a writing, and must in some way purport to contain a statement or declaration of the person sworn or purporting to have been sworn. Nothing less than this can be an affidavit under any definition, and tried by this lowest standard the paper in question is not an affidavit. It is not the affidavit of the plaintiff, for being a company, it can not take an oath. It is not the affidavit of the agent, for no where in the paper is it purported that the agent makes any statement whatever. The language is that “the plaintiff deposes and says.” If the signature were that of the agent, it might be contended with some plausibility that this was a saving feature, and that the fair intendment was that the statements of the paper were his. But it is not so signed. It is signed with the plaintiff’s name — ££The Blyth & Fargo Co., by Sherman Fargo, Managing Agent.” These things not only fail entirely to indicate that the agent makes any statement, but they convey the idea as clearly as words can do so that the plaintiff company, which is incapable of making an affidavit, makes the statement and signs it. The form of the jurat, ££ subscribed and sworn to before me,’’makes
A number of authorities are cited by defendant, but none of them are in conflict with the views herein expressed.
People v. Sutherland, 81 N. Y., p. 6, was the case of an affidavit to prove service of a notice. The name of the deponent was left blank at the beginning of the affidavit, but it was signed by him, and the ordinary jurat “ subscribed and sworn to before me,” duly signed by a notary. The court held that the paper showed that the person subscribing made the statements contained in the affidavit, and that he was sworn. That an indictment for perjury would lie and that the-affidavit was sufficient.
The other cases cited by plaintiff are upon questions which it is not deemed necessary to answer, and which are not considered.
There is the case, however, of Moline v. Curtis, 38 Neb., 520, not cited by counsel, in which an affidavit similar in some respects to the one in this case was sustained. It began, “The said plaintiff, the M. M. & S. Co., makes oath that the claim in this action is for a recovery of a judgment for money in the sum of $975.36; and the said S. W. Croy, agent of the M. M. & S. Co., also makes oath that said claim is just,” etc., and it was signed, “ S. W. Croy, agent for the M. M. & S. Co.” The court say, “ Although the affidavit in the opening clause relating to the nature of plaintiff’s claim, standing alone, purports to be that of the corporation, but when read in connection
Our statute of amendments is very liberal, but the right to amend implies the existence of the thing to be amended. There must be something to amend by. Where, as in this case, the affidavit is the foundation of the proceeding, without which all the subsequent steps are without authority of law, the courts are not empowered' to make, or permit amendments which would in effect supply the omission to file the necessary instrument at all in the first place. The affidavit required by law not having been filed, there is nothing to amend, the attachment proceedings were unauthorized, and the attachment should be discharged.
The foregoing is a sufficient answer to the first, second, and ninth questions, and an answer to the remaining questions becomes unnecessary.