Handley v. Anderson
5 Indian Terr. 186
Ct. App. Ind. Terr.
1904
Check Treatment
Gill, J.

The record had to be corrected by certiorari before even the foregoing unsatisfactory statement could be had. Many motions, counter motions, demurrers, etc., are filed in this case, some of which appear to have been considered by the court below, and, if the others were considered, the record fails to so state. No motion for a new trial was filed. As to the appeal of W. L. Goins, he, having not been a proper party in the court below, and having made no attempt to comply with the statute in reference to becoming a party, has no standing whatever in this court, and his appeal is therefore accordingly dismissed.

It is very doubtful whether the appellant Handley is in better shape; trial of this cause having been had, and he having *192filed no motion-' for a new trial therein. However, he seems to have preserved, by bill of exception, the action of the court in overriding his motion to quash the attachment order, and he makes this one of his assignments of error. The third assignment of error, namely, “that the court erred in overruling the first motion of defendant to quash the pretended writ of summons issued herein,” is not preserved in the bill of exceptions, and is not properly before this court, and the only question for us to consider in the case is whether or not the court erred in overruling defendant's motion to quash the attachment in the case. The motion reads as follows: “Now comes the defendant W. G. Handley, and shows to the court that at the time of the issuance of the order of attachment by the clerk in the above-entitled cause that no action had been commenced by this plaintiff against this defendant, in that no summons had issued, nor has a writ of summons been issued in said cause, and no voluntary appearance has been made. And jmur relator would further show to the court that at the time of the issuance of said order of court no complaint or declaration had ever been filed with the clerk, as. in such cases required by the statute, nor .had. there been a voluntary appearance of the defendant in this cause. Wherefore all and singular the foregoing facts being true, of which defendant is ready to verify, defendant prays the court that the order of attachment herein be quashed and held for. naught.” The affidavit in support thereof reads as follows: “J. W. Hoeker, being sworn, upon his oath deposes and says that he is attorney for nonresident above named, and that he has read the foregoing motion, and that the allegations therein contained are true, in that he searched the files in the office of the clerk of this honorable court, and was informed by the clerk that no complaint had been handed, him or filed, and that the order of attachment was the only writ issued by him; that no summons had been issued. Affiant states that all this occurred after the property had been attached under said order of attachment.” An examination of *193the record discloses the affidavit of plaintiff as it appears in the foregoing statement of facts, and defendant insists that the suit was not properly begun, because the affidavit had not the essentials of a complaint. An examination of the affidavit shows that it states the relation of landlord and tenant as between plaintiff and defendant; that the defendant is indebted to plaintiff for rents; that the defendant has removed, or is about to remove, crops from the demised premises; and prays for a writ of attachment, for judgment and costs of suit, and other relief. Except for the heading, the affidavit in concise language states every essential part of a complaint, including prayer for judgment; and the case of Sannoner vs Jacobson, 47 Ark. 31, 14 S.W. 458, and authorities therein cited, are conclusive upon this subject; and we might say, in passing, that an examination of the foregoing statement in reference to the writ of attachment shows that it has the summons clause upon it, and is sufficient as a summons in cases of this character, at least for the purpose of beginning the action, and is full compliance with section 4967 of Mansfield's Digest (section 3172, Ind. Ter. St. 1899). And the court finding no error in this recoru, the judgment of the court below is accordingly affirmed.

Raymond, C. J. and Clayton, J., concur.