Mitchell v. Pitts & Henry

61 Ala. 219 | Ala. | 1878

MANNING, J.

Whether the reason assigned in the motion for taking the pleas in abatement from the file in this-cause, was a sufficient one or not, for granting the order that it be done, Ave are of opinion that' there was no error in the ruling of the court. The averments of the pleas in abatement are — 1st, that the attachment “ does not show that any debt or demand was justly due,” &c.; and 2d, that the affidavit on which it was founded “does not state the amount of’ the plaintiffs’ debt or demand, and that it is justly due,”' &e., “ as required by laAV.”

But on referring to the attachment, Are find no such defect as is alleged in it. In that particular the writ is without fault. In respect to the affidavit: It shows that the person Avho made it Avas attorney for plaintiffs, Avho resided in Maryland, and that affiant “is informed and belicA-es and therefore states ” that defendant (atho was also a non-resident) “is justly indebted to plaintiffs in the sum of $182.34, by promissory note dated September 16, 1876, and due on demand.”

If it AA’as supposed by counsel Avho filed the pleas that the recital in the affidavit that affiant Avas informed and believed that defendant was indebted, &c., impaired the efficiency of his averment thereupon made, of such indebtedness, we do not agree with him. In such a case as the present, where both parties reside out of the State, it is almost impossible that an attorney residing in it and at a distance from the parties to the transaction, can absolutely know that the debt is still due and unpaid. The debtor might have discharged it since the creditor last communicated with his attorney — perhaps to some other agent of the creditor, if not to himself. So ■other causes, for which writs of attachment may issue against ■debtors, and which according to the statute, must, when they constitute the reason for issuing such writs, be as positively sworn to in the affidavits, as the indebtedness of defendants, are of a nature which prevents it from being positively known whether they are true or not. Among these causes, are the following: that the defendant “is about to remove out of the State,” or “ to remove his property out of the State,” or “ to ■dispose of his property fraudulently.” These things consist in the intention of other persons. And if “the plaintiff, his ■agent or attorney,” who by law may make the oath, must positively know them to be true, before he may swear to them, it could hardly ever happen that such causes would be available in any instance.

It will be observed that the oath in this case is, not merely that plaintiff is informed and believes that defendant is justly indebted, &c. — but “that he is informed and believes and therefore states ” that he is indebted. The averment of indebtedness in this way, is allowable when made by an agent or attorney. Besides the security against improperly proceeding by attachment, which the oath affords, if the cause alleged be not true in fact, the defendant is entitled to an action on the bond required for his indemnity.

The pleas in abatement plainly appearing upon inspection of the writings not to be sustained by the contents of the papers in the cause, to which they referred, there was no ■error in ordering them to be taken from the file, in order that the suit be prosecuted" to a conclusion.

Let the judgment of the City Court be affirmed.

Note by Reporter. — After the delivery of the foregoing opinion, the appellant applied for a rehearing, and filed in support thereof the following argument:

In Hall and Curry v. Brazelton, 40 Ala. 406 and 408, in •opinion, the court says that “ the statute in imperative language requires a sworn statement of the amount of the debt or demand, and that it is justly due” — this is the language of the Code. — § 3255; Sims, Harrison & Co. v. Jacobson & Co. 51 Ala. 136 and 188 in opinion; Hall and Curry v. Brazelton, 46 Ala. 359.

We especially call the attention of the court to Dyer v. Flint, 21 Illinois, 80, where a statute almost identical with our own, was construed by the Supreme Court in an attachment suit against a non-resident. The court there held that the affidavit made by the plaintiff’s agent or attorney as to the existence of the debt, on information and belief, was not a sufficient averment of the existence of the debt. —18 Wend. 611.

Under section 3258 of the Code a non-resident, by his agent or attorney, may sue out an attachment against another non-resident of the State, but must make the oath required as mother attachment cases, and then may state on information and belief that the defendant has not sufficient property within the State of his residence wherefrom to satisfy the debt. This section applies to plaintiff’s agent or attorney, as well as to himself.

Under section 2568 of the Code, executors and administrators may file claims against insolvent estates on information and belief; these are expressly permitted by statute, but even here the Supreme Court says in Pickle’s Administrator v. Ezzell, 27 Ala. 623, that knowledge of the correctness of the claim and that it is due, must he averred, and in Lay v. Clarke’s Administrator, 31 Ala. 409, the affidavit must show that the claim is a just and subsisting demand.

The following response was made thereto by MANNING, J.:

The judgments of this court are rendered upon the rulings and action of the court appealed from, not upon the reasons assigned for them; though these when known to us, of course, receive our consideration. A correct decision is not reversed, even if a wrong reason is given for the decision.

If we had any doubt of the correctness of our judgment in this cause, we would grant the application for a rehearing ; but as we have none, it is onr duty to overrule it.