Matthai v. Conway

2 App. D.C. 45 | D.C. | 1893

Mr. Justice Shepard

delivered the opinion of the Court:

The motion to quash contained several grounds of objection, and there is nothing in the record to show whether one or more or all of them were held to be well taken in the court below.

From the argument it appears that the objections relied on for the motion are embodied in the following points: I. The affidavits do not set forth affirmatively that the plaintiffs have a just right to recover what they claim. 2. They do not state that the articles referred to, or any part thereof, were ever delivered to the defendant. 3. They do not show sufficiently how the affiants know of the truth of the statements made. 4. They do not set forth the grounds of plaintiffs claim against defendant. 5. The certificates of the officer before whom the affidavits were made do not show that they were made in the State of Maryland, where the officer had authority to take affidavits.

So much of the statute as applies to the matters in controversy reads as follows: “Writs of attachment and garnishment shall be issued by the clerk, without any authority or warrant from any judge or justice, whenever the plaintiff, his agent or attorney, shall file in the clerk’s office, whether at the commencement or during the pendency of the suit, an affidavit, supported by the testimony of one or more witnesses, showing the grounds upon which he bases his affidavit and also setting forth that the plaintiff has a just right to recover against the defendant what he claims in the declaration, and also stating either, first, that the defendant is a non-resident of the*Districi ” . . . R. S. D. C., Sec. 782.

We think that the affidavits sufficiently comply with the substantial requirements of the statute. They show that the defendant is a non-resident of the District, in the language of the statute itself, and then go further and show that he is a resident of Maryland.

They show that defendant has effects and credits in the District subject to the attachment, and that plaintiffs have a just right to recover against the defendant what they claim in the declaration, viz., $120, with interest from March 15, 1892. The declaration on file is expressly referred to, and in it, considered specially in connection with the attached bill of particulars, plaintiffs claim or demand is set out with precision. It is for goods sold and delivered upon the dates, in the amounts, and for the prices stated. The means of knowledge of the affiants sufficiently appears. One was a member of the partnership plaintiff in the action, while the other states that he is the agent of plaintiffs and acquainted with their business, and “knows of his own knowledge” that plaintiffs’ claim, as stated in the declaration, is just, &c. He does not say that he believes the claim a just one, nor does he refer to the statement or information of others as the ground for his affidavit; but says that it is of “his own knowledge.” It is not necessary that the affidavit set forth all the facts constituting this knowledge.

In this jurisdiction, attachments are necessarily founded upon a claim in suit, either pending at the time, or commenced simultaneously with the application for the writ. When the declaration shows with precision what the plaintiff’s claim is, it would be unnecessary to require its repetition in the affidavit with the substantial detail of a pleading, as may well be the case in some other jurisdiction, where the writ of attachment may be sent out before the filing of the declaration.

Some other questions are presented on the part of the appellant with respect to the proper interpretation of the statute concerning attachments. There is no appearance in this court on behalf of the appellee, and as these questions are not necessary to be decided in arriving at our conclusions, we will not express our opinion regarding them. '

The objection to the forms of the affidavits, on the ground that they do not appear upon their faces to have been made in Maryland, is not well takeri. They appear to have been taken before "Philip H. Hoffman, Commissioner of the District of Columbia in Maryland, residing in Baltimore city,” and we will presume that the officer exercised his office within the territorial limits for which he was appointed. Carpenter v. Dexter, 8 Wall., 513; Parker v. Baker, 8 Paige Ch., 428; Struthers v. McDowell, 5 Neb., 491; Proffatt on Notaries, Sec. 66.

We do not think that the court erred in permitting the assignee, McGraw, to intervene in the case. His petition states enough to show that he has sufficient interest to make him a proper party to the proceedings in order to protect his rights, though it may be defective in not setting out the deed of assignment under which he claims title to the attached effects or credits, with such particularity of statement as that the court may determine whether or not, upon its face, it is a valid instrument in this District as against attaching creditors; If excepted to on these grounds the intervenor might amend.

For the error in quashing the writ of attachment the judgment rendered below must be reversed, with costs to the ■appellant, and the cause remanded for further proceeding not inconsistent with this opinion.