Phipps v. Burnett

96 Tenn. 175 | Tenn. | 1896

McAlister, J.

The plaintiff sued the defendant in the Circuit Court of Grundy County to .recover damages for breach’ of marriage contract. An ancillary attachment was at the same time sued out and levied upon real estate and other property belonging to defendant. The original summons, as well as the ancillary attachment, were both issued by the Clerk of the Circuit Court of Grundy County, but upon the pauper’s oath, which was taken 'and subscribed by the plaintiff before a Justice of the Peace of said county. The defendant moved to quash the writ .and discharge the attach: ment, upon the ground that the oath prescribed for poor persons should have been taken and subscribed before the Clerk of the Circuit Court. It was ruled by this Court in Knoxville Iron Company v. Smith, 86 Tenn., 45, that a pauper oath in lieu of prosecution bond is sufficient, though taken before the Clerk of a Court of this State other than that in which the suit is instituted. The form of oath prescribed for poor persons is set out at § 3912 of M. & V. Code. As observed by Judge Turney in the case last cited, viz.: ‘ ‘ There is no designation of the official before whom the oath is to be taken. . . . The statute having made no restriction or limitation, we can make none.” Section 398 of M. & V. Code provides, viz.: “Every Justice is- a conservator of the peace in his county, and has authority therein to administer oaths, when required by law, unless the power is expressly intrusted to some other officer,” etc. As already seen, the power to administer and authenticate the oath prescribed for poor persons has not been intrusted to any special officer, and it follows that it is such an oath as may be made and subscribed before a Justice of the Peace. The Circuit Court was, therefore, in error in holding that the pauper’s oath in this case was insufficient. The case of Graham v. Caldwell, 8 Bax., 69, so far as it is in conflict with this holding, is overruled.

It was also assigned as a ground to discharge the attachment that the affidavit upon which it was issued recited that, ‘ ‘ to the best of her knowledge and belief, defendant . . . has fraudulently disposed ox his property, or is about to fraudulently dispose of it, so that the ordinary process of law cannot be served on it,” without averring, as a matter of fact, that he has made, or is about to make, such fraudulent disposition. It is claimed that the statement in the affidavit means only that information has been had and. the belief exists. The effort is made to bring this case within the rule laid down in Nelson v. Fuld & Co., 89 Tenn., 466, where the allegation was “that complainant is informed and believes that said Fuld & Co. have fraudulently disposed of, or are about fraudulently to dispose of, their property.” In the present case, the allegation is that to the best of her knowledge and belief, which is entirely sufficient' under the authorities. Bank v. Berry, 2 Hum., 448.

For the errors indicated, the judgment is reversed, and cause remanded.