85 Ark. 431 | Ark. | 1908
(after stating the facts.) The statute, Kirby’s Digest, § 6055, authorizes the clerk to make a warning order upon the complaint upon the filing of an affidavit of plaintiff, stating any one of six facts, among which are, that defendant is “a non-resident of this State” or “conceals himself so that a summons can not be served upon him.”
The affidavit is in the alternative, and neither states the fact of non-residence nor that the defendant conceals himself so that a summons can not be served upon him. It simply states one or the other, without any possibility of ascertaining which.
In the case of Kegel v. Schrenkheisen, 37 Mich. 174, it was held that an affidavit for attachment stating that the deT fendant has assigned, etc., or is about to assign his property, is fatally defective for being in the alternative. Cooley, C. J., speaking for the court, said: “This affidavit is fatally defective because in the alternative. It should show the existence of either one cause or the other, which this affidavit does not.”
In the case of Dickenson v. Cowley, 15 Kan. 269, Brewer, J., said: “There was a fatal defect in the attachment proceedings. The grounds for the attachment alleged .in the affidavit were, ‘that the defendant is a foreign corporation, or a nonresident of Brown County.’ There are two objections to this, one that it is in the disjunctive.”
In the case of Ranaldson v. Hamilton, 5 La. Ann. 203, the court held that the affidavit, being in the alternative, was defective because of uncertainty. The same rule has been announced in the following cases: Billings v. Noble, 43 N. W. 1131; Collins v. Beebe, 7 N. Y. Supp. 443; Arnot v. Wright, 55 Hun, 561; Dintruff v. Tuthill, 62 Hun, 591.
In a case of this kind it may not be said that where a plaintiff is ignorant of which of two statutory grounds are true he is without a remedy.
Where either of the last two mentioned facts of section 6055 of Kirby’s Digest is stated in the return by the proper officer of a summons against the defendant, the clerk is directed to make the warning order upon the complaint.
Section 6056 provides that the court may make the warning order upon the requisite facts being shown by affidavit or other proof.
Appellant also contends that no warning order was properly made, that no proper attorney dd litem was appointed as required by the statutes; and that the decree was prematurely rendered and therefore void, because the same was entered of record before' the defendant was required by law to file his answer.
Inasmuch as the cause must be reversed for the error indicated, and as the appellant has entered his appearance by taking this appeal, it' is unnecessary to pass upon these questions.
The cause is- reversed and remanded with leave to appellant to make such defense thereto as he is advised to do, and for further proceedings therein according to the rules and practice in such cases and the rights of the parties.
