14 Iowa 292 | Iowa | 1862
Attachment. Motion to quash being overruled, defendant appeals.
It is first objected that the cause stated was not sufficient to justify the issuance of the writ. This action was com
It is next objected that the original petition was never presented to any Judge of the Supreme, District or County Court, for an allowance thereon of the amount in value of • the property that should be attached, the demand of the plaintiff not being founded upon a contract.
The record shows that the petition has been presented to the County Judge of Jones County, and indorsement made thereon, directing the officer to attach property to the amount of one thousand dollars. It is objected that it is not certified under the seal of the court that W. H. Holmes was the County Judge of said County. This was not required by the statute. It is not to the court that such petitions must be presented, but to the Judge thereof, in his individual capacity, and it is not necessary that his signature as such judge should be certified to, under the seal of his Court.
The next cause assigned in the motion to quash the attachment is that the petition in said action is not properly verified, that the plaintiff did not swear to the correctness of his claim, or that the defendant was indebted to him, but merely swears that the facts set forth therein asking a writ of attachment are true as the plaintiff verily believes, and that the officer, before wKom the petition in said ease is verified, does not certify that the affidavit to the petition was signed by the plaintiff in the officer’s presence.
In the petition for the attachment the plaintiff does not state the amount due, but merely alleges the cause for the ‘ issuance of the writ. This is signed by the attorneys for plaintiff.
Annexed thereto is the affidavit of the plaintiff which reads as follows:
It is claimed by appellant, in argument before this Court (although we think this point is not clearly made by the motion in the Court below), that the plaintiff in his petition for an attachment does not state-the amount claimed to be due.
The petition and affidavit are precisely the same as in the case of Blakely v. Bird, 12 Iowa, 601, which were held to be insufficient, for the reason that the plaintiff did not state under oath in the petition for the attachment, the amount due.
That suit, however, was a suit upon a contract, and this is not. Section 8175, provides, that if the plaintiff’s demand, is founded on contract the petition must state, as nearly as practicable, the amount due. Where, however, the plaintiff’s claim is not founded upon a contract (as in this case), and the damage is, therefore, unliquidated, the statute does not require the plaintiff to state the amount due.
The objection to this affidavit in the motion to quash is, that from the language used, the plaintiff does not swear to the truthfulness of the allegations in the petition. It is claimed that facts signify truths, and that the affiant when, he swears that the facts set forth in the petition are true, he only verifies such portions as are true, without undertaking to say that all the matters and things therein stated are true.
This objection is not well founded. We are inclined to the opinion that the word facts, as here used, refers to the averments in the petition, and that the affiant intended to
Affirmed.
