Flower v. Griffith's Heirs

12 La. 345 | La. | 1838

Carleton, J.,

delivered the opinion of the court.

An attachment was obtained in this case, upon the following oath of the petitioner :

“William Flower, of the city of New-Orleans, attorney in fact of Mary A. Prime and Cordelia A. Prime, both residing in England, being duly sworn, doth depose and say, that Cornelius Griffith and Sally Griffith, heirs of Llewellyn C. Griffith, residing in the state of Virginia, are indebted to the said Mary and Cordelia Prime, in a sum exceeding two thousand dollars, arising from an unsettled account between Richard A. Prime and Llewellyn C. Griffith, and for which a suit has long been pending in the District Court, third judicial district, of the state of Louisiana, and that the said heirs of Llewellyn C. Griffith reside permanently out of the state of Louisiana.”

Before the plaintiff can ohment, he must J?1^® a/eclal?" at the foot of his Fh^^amount11^ the sum due to him. So, where the affidavit declared, thate( a sum exceeding two thousand dollars was due,” the sum 'due was deemed to he staled with sufficient certainty, to sustain the at-*™l3;ptforthat

The defendant moved the court to dissolve the attachment on the ground that “the affidavit does not state expressly and positively the amount claimed, as the law requires.”

The court sustained the exception, and the plaintiff appealed from the decree dissolving the attachment.

The sufficiency of the affidavit, is the only question which the parties present for oar consideration.

We think the court erred. By the Code of Practice, article 243, the petitioner is required to make a declaration under oath, at the foot of the petition, “ stating the amount of the sum due to him.:

By declaring that a sum exceeding two thousand dollars vjas due, the affiant has specified with sufficient certainty, that at least that sum was due.

For this amount, therefore, the attachment might well lie; •and as it does not appear to have issued for a greater sum, we think the court erred in dissolving it.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; that the attachment be reinstated, and this cause remanded for further proceedings according to law, the appellee paying the costs of appeal.