Sargent v. Shepard, 94 Vt. 351

Sargent v. Shepard

94 Vt. 351

| Vt. | 1920

Powers, J.

[1-3] In an action on a contract, the writ can issue as a capias only when an affidavit is filed with the authority issuing the same, as provided in G. L. 2360. Without such an affidavit, a writ so issuing is void, and proceedings under it are coram non judice. The defect is not dilatory in character, but is jurisdictional, and the question may be raised at any stage of the proceedings. Wilson Bros. Garage v. Tudor, 89 Vt. 522, 95 Atl. 794, and cases cited. The sufficiency of the affidavit here filed, therefore, is for consideration, though the defendant appeared at the trial below and did not object to the sufficiency of the process until judgment had been rendered against him. Nor should the defendant’s rights be prejudiced by the fact that the *353motion filed by him in the court below was not, either in form or substance, technically appropriate to accomplish the defendant’s purpose in filing it. It should have been treated below as a motion to strike off the judgment and dismiss the action for want of jurisdiction of the process. And in the circumstances, it will be so treated here.

[4] The sufficiency of the affidavit before us is challenged on the three grounds considered below:

1. It asserts that the plaintiff had good reason to believe and did believe that the defendant had secreted property “to an amount sufficient to satisfy the demand in said action. ’ ’ The defendant insists that it should have followed the language of the statute, and asserted that the defendant had secreted property to an amount “sufficient to satisfy the demand upon which he is to be arrested.”

But this is spinning it too fine; the affidavit properly bears the title of the case of which it forms a part, and the reference-which it contains to the demand in that action is enough to show that it was the one on which the defendant was to be arrested. See Davis v. Dorr, 30 Vt. 97. It cannot be said that no action was then pending, for in contemplation of the law the filing of the affidavit and the issuance of the writ are simultaneous acts; and though the former necessarily precedes the latter, they are parts of the same transaction.

[5, 6] 2. Nor can we sustain the claim that the affidavit does not sufficiently show where it was made and sworn to; for, assuming that this must appear in order to show that the officer before whom it was sworn to was acting within his territorial jurisdiction, it is quite sufficient if this appears by implication. 1 R. C. L. 768. The venue of the affidavit before us is laid as “State of Vermont, Windsor County, ss,” and it is certified by a notary public. In these circumstances, it will be here taken that the affidavit was made and sworn to at some place in Windsor' County, which is within a notary’s jurisdiction in such cases. G. L. 3906. Moreover, it is now generally considered that a venue is not essential to the validity of an affidavit, and courts indulge a presumption that the officer who certifies to it acted within his jurisdiction. 2 C. J. 345. Black v. Minneapolis, etc., R. Co., 122 Ia. 32, 96 N. W. 984.

[7] 3. The jurat to the affidavit before us reads as follows: “Subscribed and sworn to this 13th day of November, *3541919. Roland E. Stevens, Notary Public.” The omission of the words “before me,” preceding the signature of the notary, is not fatal, though cases so holding are to be found. These or equivalent words are not always regarded as essential. Clement v. Bullens, 159 Mass. 193, 34 N. E. 173; Empey v. King, 13 M. & W. 519. The most that is required is that enough appear to warrant an inference that the affiant personally appeared before the officer who signs the jurat. -2 C. J. 361. The jurat itself is the certificate of an officer of the law; official acts are presumed to be regular (McKinstry v. Collins, 76 Vt. 221, 56 Atl. 985); and, nothing to the contrary appearing, it will be presumed that this affidavit was sworn to before the notary who attached his signature to the jurat. Black v. Minneapolis, etc., R. Co., supra.

Affirmed.