5 Blackf. 273 | Ind. | 1840
This was an action of foreign attachment. Allen was the plaintiff, and Henris the defendant, below. It appears by a suggestion in the assignment of errors, that, after the rendition of the judgment in the Court below, Allen deceased, and Sweasey was appointed his administrator, who is made defendant in this writ of error.
The affidavit of the plaintiff below, which was filed on the 8th of April, 1833, stated that the defendant was not a resident of this state; that he was then indebted to the plaintiff in the sum of 750 dollars, as indorser of three promissory notes dated June the 23d, 1819, each for 195 dollars, payable in one, two, and. three years after date; that the notes were executed by Joint Crouch and Nathan Crouch, and were payable to the defendant who indorsed them to the plaintiff; that the makers, at the time of the assignments of the notes, were notoriously insolvent; that at the June term, 1823, of the Franklin Circuit Court, the plaintiff obtained a judgment against the makers of the notes for 607 dollars and 75 cents, besides costs; that he had sued out a writ offi-fa. on the judgment which had been returned no property found; and that by means of the premises, the defendant became liable to pay the plaintiff, and promised to pay him, the said sum above stated, on request, but which sum was still due and unpaid.
The record contains a statement that the plaintiff filed a bond with security, and that thereupon a writ of foreign attachment issued; the writ, which was returnable to October term, 1833, is spread upon the record, but the bond is not; the writ was returned duly executed; at the October -term, 1833, an order of publication was made; the cause was regularly continued, from term to term, until the April term, 1835, when the defendant was called and failed to appear— it having been shown “to the satisfaction of the Court, that due and legal publication had been made in this cause, and that the same had been continued two terms previous to that term;” whereupon the Court assessed the plaintiff’s damages at 1,052 dollars, and rendered judgment for that sum and
The errors assigned are, 1st, the affidavit is insufficient; 2dly, no attachment-bond appears of record; ' 3dly, the damages were assessed by the Court; 4thly, the cause was not continued for two terms after publication proved; and Sthly, the judgment is for an amount exceeding the sum claimed by the affidavit to be due.
The first objection cannot be sustained. A sum certain, to wit, 750 dollars, is claimed to be due and owing from the defendant to the plaintiff by the affidavit; the nature of the debt is set forth with certainty, and the non-residence of the defendant is stated; nothing more is required .by the statute. II. C. 1831, p. 82. That the facts set forth seem to show that the plaintiff might have claimed a larger sum than he has claimed, does not vitiate the affidavit; there might have been credits not stated in it.
The second assignment of error must prevail. The attachment-bond should have been set forth in the'record. Cousins v. Brashier, 1 Blackf. 85.
There is nothing in the third error; the damages depended .upon mere calculation, and no writ of inquiry was necessary.
The fourth objection is well taken. There ought to have been two continuances of the suit after publication made and proved, before the rendition of the judgment. R. C. 1831, p. 83. The record does not show that'the law was complied with in this respect. >
The fifth error must also prevail. The plaintiff in attachment is not entitled to a judgment for a greater sum than he demands by his affidavit, together with .interest, if the debt be such as to draw interest. The plaintiff claimed to be due him on the 8th of April, 1833, 750 dollars; that sum, inclusive of interest to the 15th of April, 1835, when the judgment was rendered, could not equal 1,052 dollars — the amount of the judgment.
The judgment is reversed, and the proceedings subsequent to the proof of publication set aside, with costs. Cause remanded, &c.
