Shaffer v. Sundwall

33 Iowa 579 | Iowa | 1871

Day, J.

I. It is claimed that there is no affidavit of

verification;. that the petition is not sworn to as the law requires; and that the certificate is insufficient under section 2913 of the Revision. Way v. Lamb, 15 Iowa, 82. If it should be conceded that all these defects exist, still there was no error in the action of the court directing an amendment in these respects. That the petition was sworn to is clearly established. The defect urged is not that the petition was not verified, but that it was not verified strictly in the manner required by law. The objection goes to form rather than to substance. “ The attachment law shall be liberally construed, and the plaintiff, before or during trial, shall be permitted to amend any defect of form in the affidavit, bond, attachment, or other proceeding.” Rev., § 3242. See, also, Wadsworth v. Wells, 13 Iowa, 576 ; Bunn v. Pritchard, 6 id. 56 ; Graves v. Cole, 1 G. Greene, 405 ; Langworthy v. Waters, Hughes & Co., 11 Iowa, 432.

2. — statementofindebtedness. II. It is urged that the petition which asks the attachment does not state that any thing is due. While it is conceded that in the body of the petition , , ,, ^ , , ^ asking a judgment, the amount due is stated. The view of counsel seems to be that the portion of the petition which asks an attachment must be separate and distinct from that in the main cause, and must in itself contain all the essential averments; and that it cannot be aided by the averments, in the body of the petition, setting forth the cause of action. We are aware of no principle of pleading by which this position can be sup ported. Section 3113, which provides that if the attachment be sued out subsequent to the commencement of the action, a separate petition must be filed, impliedly negatives tbe neeessity-for such separate petition when tbe attachment is sought at the commencement of the action. Exjyressio imius est exclusio alterius. See Shevill v. Fay, 14 Iowa, 292, in which a petition, framed in substance as the one under consideration, was held sufficient.

3. —want of ment. III. The writ of attachment issued from the circuit court, and bore the seal of the district cov/rt. The circuit court of each county is required to use its own seal, having on the face thereof the words “ circwit oowrt” and the name of the county and State. Acts 12th Gen. Ass., ch. 86, § 11.

No authority is conferred upon the circuit court to use the seal of the district court in authentication of writs issued from the circuit court.

The seal of the district corn’t had no greater effect in giving validity to the writ of attachment in this case than the seal of a private corporation, or a notary public, or any other seal which the clerk had no authority to use would have had. The case stands then as though no seal had been used. A writ of attachment without a seal is invalid, and the defect is of such a nature that it cannot be cured by amendment. Foss v. Isett, 4 G. Greene, 76. The corn't erred, therefore, in overruling the motion to discharge the attachment, and in permitting the amendment of the writ by attaching the seal.

For this cause the judgment must be reversed. It’ becomes unnecessary to determine the authority of Dun-ham to serve the writ.

Reversed.