Graham v. Burckhalter

2 La. Ann. 415 | La. | 1847

The judgment of the court was pronounced by

King, J.

This suit was commenced by attachment. The plaintiffs claimed $1,453 39, with eight per centinterest, from the 17th of April, 1843. The clerk granted an order, that the writ should issue upon bond-being given by the plaintiffs in the sum of $2,180 08, which is one half over the principal debt, exclusive of interest. The counsel appointed to represent the absent defendant, moved to dissolve the attachment, on the ground that the plaintiffs had not given a bond for a sum exceeding by one-half the amount claimed and sworn to. The plaintiffs then moved for leave to amend their proceedings, by filing an additional bond for $1,000, which was tendered. This motion was overruled, and the attachment dissolved. The plaintiffs have appealed.

The judge, in our opinion, did not err, in refusing the application of the plaintiffs to amend. It has been uniformly held that, when the remedy by attachment is resorted to, all the forms prescribed by law for that proceeding must be strictly observed, on the pain of nullity. One of the pre-requisites to issuing the writ is> that the plaintiff shall annex to his petition a bond in favor of the defendant, for a sum exceeding by one-half that which he claims; and the amount sworn to, has been held to fix the amount for which the bond is to be given. The order granted in the present instance on an insufficient bond was void, and under it no attach" ment could legally issue. This radical defect, which vitiated the proceedings in their inception, could not be cured by subsequently furnishing an additional bond. A sufficient bond was a condition precedent to issuing the writ. C. P. art. 245. 3 La. 18. 17 La. 437. Judgment affirmed.