26 Ill. 45 | Ill. | 1861
This was an action of trespass to personal property, instituted by Rees against Booth, a justice of the peace, Kinyon, the plaintiff in a former suit, and Reed, the constable. The defendants filed the general issue, and each a plea of justification. Booth, in his plea, justifies as a justice of the peace, and avers, that being such, defendant Kinyon appeared before him and made the following affidavit:
“ STATE OE ILLINOIS, 1 COUNTY OB LEE. j °S"
“The oath and complaint of Alonzo Kinyon, taken before K. F. Booth, a justice of the peace of said county, doth depose and say, that J. G. Rees is justly indebted to Alonzo Kinyon in the sum of 45 25-100 dollars, and that the said J. G. Rees is not a resident of this State, as this affiant has been informed and believes, and asks that an attachment may issue against the personal effects of said J. G. Rees.”
Which was duly sworn to on the 8th day of March, 1859, and upon it a writ of attachment was issued, and placed in the hands of Reed, an acting constable of the county. He after-wards returned it levied upon the personal property of Rees, but not served upon him. Judgment was afterwards rendered against Rees, and execution issued, and the property was sold. Reed, as constable, justified under the judgment and proceedings in the case, and so did Kinyon. Appellee filed a general demurrer to each of these pleas, which was sustained, and defendants abided by their pleas. A nolle prosequi was entered as to Reed, and trial was had on the general issue, and a verdict was found against Booth and Kinyon, and the damages were assessed at two hundred dollars. A motion in arrest, and for a new trial, were interposed, overruled by the court, and judgment rendered upon the verdict. And this appeal is prosecuted to reverse that judgment.
The only question urged for a reversal in this case, is the sufficiency of the affidavit to sustain the proceeding in attachment. If no jurisdiction was acquired, all the proceedings based upon it were unauthorized, and could not afford any justification to the plaintiffs and justice of the peace. The objection urged against the affidavit is that it is only made on information and belief, and not as a positive fact, or fails to state such facts as prove the non-residence. This court, in the case of Frye v. Flint, 21 Ill. 80, holds that the allegation of non-residence must be positive, and not upon information or belief, and if it is so made, that it is ground for a reversal. It is not, however, said in that case, that such an affidavit is void. It appears to be a rule of universal application, that a void thing is not amendable. It has no vitality, and is deemed to • have no legal existence. It is a nullity, and hence is incapable of amendment. On the other hand, a proceeding which is not in all respects formal, but has substance, may usually be amended as to form, or "where the statute has authorized the amendment of the proceeding, it cannot be regarded as void, but only voidable.
Where the statute has provided that affidavits in attachment proceedings might be amended, although informal, and not in conformity with its requirements, a sufficient amount of vitality was thereby imparted to such instruments as to render them voidable only, and not absolutely void. Defects which, independent of the statute, might have rendered such instruments a nullity, have been so far aided by this statutory right to amend, as to render them only voidable. The. sixth section of the attachment act is broad and comprehensive in its provisions. It provides for the allowance of any amendment to the affidavit, writ, return or bond, or that a new affidavit or bond may be filed, which may be necessary to obviate objections to the same. Under this provision, amendments are allowed to a great extent, and to that extent the proceeding is not void. An affidavit might be so defective, that it could not be regarded as amendable, and would consequently be void. If it in no way referred to the parties, or failed to fix any amount of indebtedness, and failed to state any grounds for suing out the writ of attachment, it could not be regarded as an affidavit in the case, and would not be amendable. But where it contains the names of the parties, the amount of the indebtedness, and specifies any of the statutory grounds for issuing the writ, however defectively stated, or if it shall contain some of the statutory requirements and omits others, it may be amended. This affidavit states positively that Rees was indebted to Kinyon in the sum of $45.25, and that he was informed and believed that Rees was not a resident of this State. Whilst this affidavit was defective it was not void, and can only be attacked in a direct proceeding, and is sufficient to protect those acting under it.
After a careful examination of the pleas, we are unable to perceive any defect for which the demurrer should have been sustained, as they present a sufficient bar to a recovery. The court below, therefore erred in sustaining the demurrers to these pleas, and the judgment of the court must be reversed, and the cause remanded. Judgment reversed,.
