Lowry v. Stowe

7 Port. 483 | Ala. | 1838

•COLLIER, C. J.

— The County court of Tuskaloosa was moved to quash the attachment, which had been issued in this case, at the suit of the plaintiff in error, against the defendant:—

1. Because there was no affidavit, or if any, a defective one.

2. Because there is no bond, or if any, no sufficient bond.

3. Because the attachment being for more than fifty dollars, is not returnable, either to the County or Circuit court.

4. Because the attachment is not under the' hand and seal of the justice of the peace issuing the same.

5. Because the cause of action is not endorsed on the attachment.

The motion was sustained by the court on the first reason assigned, and this, though the plaintiff offered to prove that the justice of the peace issuing the attachment inserted, with his own hand, his name in the body of the affidavit.

The objection to the affidavit is, that the justice does not attest the signature and verification by the plaintiff, in the usual form, of — i‘ Sworn to and' subscribed before me,-, justice of the peace,” &c. In other respects, it is unexceptionable, and conforms to the directions of the statute.

Upon the motion to quash, every thing disclosed by the proceedings should be taken as true. We must, then, suppose that Robert T. Clyde was a justice of the “peace for Tutkaloosa county—that the plaintiff verified, by oath, the facts set out in the affidavit, and subscribed it with his name—All this appearing from the affidavit, the first reason furnished no ground for which to quash. If it had been true, that the individual representing himself as a justice of the peace, was not such in fact; or that the affidavit had not been verified and subscribed, the objection should have been taken by plea in abatement, and not otherwise, in attaining tills conclusion, we do not desire to be underMood as determining, that an attachment issued upon a ¿efectiva bond or ailidavit, can only be quashed on plea, as in cases where no bond or affidavit has been taken, and returned—(Aik. Dig. sec. 3, p. 38.) The question docs not necessarily arise, and we therefore leave it open.

The bond is dated on the fourth day of January, eighteen hundred and thirty-six, and recites the attachment as returnable “ to the County court, to be held at the court house, on the third Monday in January, instant” — while the attachment appears to have been issued on the fourth clay of January, eighteen hundred and thirty-eight. The bond is defective in describing the attachment as being returnable almost two years before its issuance. Yet it is conceived that this discrepancy will not sustain the judgment of the Comity court; but the defect might have been amended by the substitution of a new and perfect bond : if the plaintiff had declined, upon the requisition of that court, thus to amend, it would then have been time enough, to quash his attachment. — (See i\ik. Dig. see. 17, n. 42.)

Neither the third, fourth, or fifth reasons for the motion, were well taken. It sufficiently appears from the attachment, that it was retirnable to the County court of Ttiskaloona. The form of the writ prescribed ley the statute, does not recognise the seal of the justice. The test is as follows: “Witness,- -, a justice of the peace in and for the comity aforesaid, at -, the-day of in the year,” c/e. The seal, then, immediately after the signature of the justice, is a sufficient compliance with the law.

In Johnson vs. Perry, (4 Stew & Por. 45,) it was decided, that the want of an endorsement of tile cause of action on the writ, issued b j the clerk of a Comity or Circuit court, returnable to their respective courts, was properly pleadable in abatement. The provision of the act on which that decision is founded, is os follows: “And it shall be the duty of the elerl: or plaintiff’s attorney, to endorse on the bach of the writ, the cause of the action, the nature of the specialty, or the grounds on which the action is founded,” dye. The title of the act is “An act establishing Superior courts, and declaring the powers of the territorial judges” — and was prsscd in eighteen hundred and seven — (Aik. Dig. see. 112, p. 278.) The laws enacted professedly for the regulation of attachments, though very explicit In pointing out their form, and the grounds which entitle a party to that proceeding, are entirely silent as to the necessity of accompanying the process with a more particular statement of the cause of action, than tile writ itself contains. It sufficiently appears, both from the title and terms of the act of eighteen hundred and seven, that it applies to the initiatory process in a cause issuing from courts in which clerks are necessary officers; and cannot therefore extend to attachments issued by a judicial officer.

For the decision of the County court, touching the sufficiency of the affulav'd, its judgment is reversed, and the cause remanded.