Matthai v. Capen, 65 Conn. 539

Matthai v. Capen

65 Conn. 539 | Conn. | 1895

Fenn, J.

The sole question in this case is whether the Superior Court erred in sustaining the defendant’s plea in abatement for alleged defective service. The original writ of replevin, with the affidavit and recognizance, complied in all respects with the form given in § 1327 of the General Statutes. The copy served on the defendant gave the name of the affiant, Howard H. Knapp, in the body of the affidavit and the word “ deponent ” at the end; also the jurat of the magistrate, “ Subscribed and sworn to before me,” but omitted the name of the affiant at the foot of the affidavit just before the word “ deponent.”

The rules of law which ordinarily apply to a variance between the writ and copy left in service, independently of any aid from § 1000 of the General Statutes, would seem, if equally applicable here, to justify the conclusion that the variance stated was not a fatal one. 1 Swift’s Dig. (side. *543page), 611; Tucker v. Potter, 35 Conn., 43 ; Gallup v. Manning, 48 id., 25, 30. But it is true, as claimed by the defendant in support of the judgment of the court below, that “the action of replevin is a special one in which the requirements of the statute must be strictly complied with, before the plaintiff can avail himself of its aid.” Spencer v. Bidwell, 49 Conn., 62. It is also true that “the statute especially requires the attachment of a particularly defined affidavit to the writ, and the leaving of a copy of the same with the defendant, in addition to the general statute relative to process. This being so, it follows that the failure to subscribe the affidavit would be an irregularity in procuring the replevin process; which, while it would not render the proceeding void, might make it voidable at the election of the defendant.” Nichols v. Standish, 48 Conn., 321, 323. So also, the omission to comply with the requirement that the copy left in service shall contain said affidavit, might be ground for abatement at the option of the defendant, notwithstanding that “ the person and cause may be rightly understood and intended by the court.”

But assuming the name, in the place where it appeared in the original, at the end of the affidavit, to have been essential to the validity of such original, we do not regard it as equally material in the copy. The requirements of the statute in reference to the former are not identical with those in regard to the latter. Nor are the grounds upon which the requirements rest, and their purpose,' the same. The object of the provision for an affidavit of certain facts is patent. The required subscription adds deliberation, caution and solemnity to the deed. The reason for the requirement that the copy left in service shall contain the affidavit, is to apprise the defendant that oath to the essential fact upon which the action depends, namely: that the plaintiff is entitled to the immediate possession of the goods or chattels which it is desired to replevy, together with what is stated to be the true and just value of such property, has been made, and to give the name of the affiant. These are matters regarding which the legislature, in its wisdom, has *544deemed it proper that the defendant should be informed. Hence the requirement. The omission at the end of the affidavit, of the name of the deponent appearing at the beginning of such affidavit, deprives the defendant of no part of this information. Indeed, he is also further informed by the magistrate’s jurat that the affidavit was “ subscribed ” before him. On the other hand, all that can be claimed by the defendant, if his contention is correct, is that the copy served upon him indicates that this statement of the magistrate may be erroneous, and that a ground for a plea in abatement for a defect in the original process, in fact exists. Although an inspection of the original process shows no defect therein, yet the defendant asserts that because he has thus been misled, a cause for abatement exists for defective service of such process. There does not appear to us to be sufficient merit in this claim to warrant its adoption, and the establishment thereby of a rule which would subject plaintiffs who had themselves complied with all statutory requirements, to serious loss, for clerical inaccuracies of officers of the law, resulting in no possible injury to the opposite party.

There is error in the judgment complained of.

In this opinion the other judges concurred.