1 N.D. 206 | N.D. | 1890
On December 27, 1887, plaintiffs commenced this action, alleging an indebtedness on account for goods sold and delivered in the sum of $3,136.91, and that said amount was due and payable. The action was aided by attach
The order to show cause was heard on March 17, 1889, and
At the time the additional affidavit was permitted to be filed, the property of the appellant had already been in the custody of the law for more than a year. The warrants of attachment originally issued had completely fulfilled their purposes. No additional affidavit, and no number of affidavits, could add to the efficiency of the warrant. Hence the filing of such affidavit for the purposes alleged in the order could work no advantage to respondents, and no prejudice to appellant. We do not decide whether or not such additional affidávit was permissible under our statute, because, if permitting it to be filed was error, still it was without prejudice. But the court not only permitted it to be filed, but made it retroactive. The only effect of the order was not to aid the attachment, but to avoid the answer. Under our practice (Comp. Laws, § 5014)'an action may be commenced on a claim not due, and an attachment issued against
The attachment proceedings are incidental and provisional. They form no part of the pleadings proper. Harrison v. King, 9 Ohio St. 395; Wap. Attachm. 81. In states where the affidavit for attachment and the complaint are separate, we find no case where a complaint has been aided by the statements in the affidavit; and, indeed, this must be so, because the summons, which is the writ which gives the court jurisdiction to hear the case, requires the defendant to answer the complaint. He is not allowed in the main action to traverse the allegations in the affidavit. Churchill v. Fullraim, 8 Iowa, 46. If defendant desires to discharge the attachment, he can attack the affidavit as directed by statute; otherwise the allegations remain undisturbed. No obligation rests upon him to refute them; and, unlike the allegations of the complaint, they do not stand admitted because not denied. It is clear that the judgment was based on the additional affidavit. As that affidavit formed no part of the pleadings, and as its allegations were not admitted, its consideration was error.
The judgment of the lower court is reversed, with costs, and the case remanded, with leave to plaintiff to apply to the court for an order requiring the defendant to satisfy the amount of