Marnine v. Murphy

8 Ind. 272 | Ind. | 1856

Perkins, J.

Foreign attachment. An affidavit as follows was made and filed;

“ State of Indiana, Daviess county, ss., Daviess Circuit Court, April term, 1848. Jeremiah Murphy, of the county of Vigo, and State aforesaid, being duly sworn says that John Marnine, of the State of Ohio, is justly indebted to him in the sum of 392 dollars as follows, to wit: In the sum of 160 dollars had and received by tlie said John from the said Jeremiah to enter land in Indiana for him, the said Jeremihh, but which he, the said John, converted to his own use; also the sum of 177 dollars collected by the said John for the said affiant, &c.; also the sum of 80 dollars paid, laid out, &c.; all of which sums, &c. And that the -said Marnine is not a resident of Indidna but of Ohio,” &c.

With the affidavit, was filed a bond in penal the sum of 780 dollars.

“ Upon the filing of which affidavit and bond,” says the record, a writ, &c., issued, &c. The writ recited the affidavit and bond. It issued upon the 6th of March. The April term of the Court commenced on the 23d of April following. At that term the plaintiff appeared, proved publication for three successive weeks from the 25th day of March, and had the cause continued.

The sheriff’s return to the writ of attachment was in these words: “On the 7th day of March, A. D. 1848,1 attached within my county the real estate described in the following inventory, as the property of the within John Marnine, and on the same day, with the assistance of Beverly Berry, a disinterested householder, made an inventory and valuation of the same, which I have herewith returned, annexed to this writ, — being all the property of’ the said John Marnine, that I could find in my bailiwick.” Signed by the sheriff; and containing, appended, the appraisement of the. property by the sheriff and said Berry.,

At the October term, the defendant was called, defaulted, proof of. publication, &c., presented, an inquest of damages taken by a jury, judgment, and order of sale of property entered, &c.

The objections to these proceedings are:

1. The bond does not appear to have been approved prior to the issuing of the writ. "We think it does, sufficiently. 1 Blackf. 229. ,

B. M. Thomas, for the plaintiff. J. M. Van Trees, for the defendant.

2. It does not appear that the property attached was situated in Daviess county. . We think it does.

3. Notice was not published for four weeks. The statute required but three. R. S. 1843, p. 773. — 1 Blackf. 237.

4. There was but one continuance, after proof of publication. That was all the statute required. R. S. 1843, p. 773. — See 5 Blackf. 335. The statute of 1831 required two.

5. The affidavit shows that the plaintiff is entitled to a greater sum than he demands in his affidavit. This is no objection. Henrie v. Sweasey, 5 Blackf. 273.

6. The bond is not in double the amount claimed in the affidavit. This is true. The amount claimed is 392 dollars. Double that sum is 784 dollars. The bond is in the sum of 780 dollars ⁽¹⁾.

7. The attachment is not shown to have been levied in the presence of a disinterested ana credible freeholder. This position is true ⁽²⁾.

Now, these deparitures from the requirements of the statute seem small, but they are departures; R. S. 1843, pp. 765, 773; and proceedings in attachment, being ex parte, great strictness is required. Leach v. Swann, 8 Blackf. 68. The judgment, in such cases, will be reversed for small deviations from the statute. It must be, in this case.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.

(1) See Young v. Greg, Harp. 38; Callender v. Duncan, 2 Bail. 454; Brown v. Whiteford, 4 Rich. L. 327; Lawrence v. Featherston, 10. Sm. and Marsh. 345.

The defendant is usually the only party who can take advantage of this defect. Drake on Attach., s. 142 and authorities cited. The advantage must be taken in limine, id. 143, and notes. The objection comes ¡too late in an appellate court, when not made in the court below. — Id.

(2) See Gardner v. Hunt, 2 Rich. L. 601.