Clark v. Roberts
| Decision Date | 31 December 1828 |
| Citation | 1 Ill. 285 |
| Parties | JONATHAN CLARK, Plaintiff in Error, v. LEVI ROBERTS, Defendant in Error. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
ERROR TO MONTGOMERY.
If the affidavit upon which an attachment is issued, does not comply with the requisitions of the statute, all the proceedings under it are void, and the attachment ought to be quashed.
THIS suit was originally brought by attachment, before a justice of the peace in Madison county, sued out by Roberts against Clark upon the following affidavit viz.:
State of Illinois, Madison county:
Levi Roberts being duly sworn, saith, that Jonathan Clark is justly indebted to him in the sum of one hundred dollars, and that the said Clark is privately moving his property out of the county, and therefore prays an attachment.
LEVI ROBERTS.
Sworn and subscribed before me this 3d day of June, 1826.
E. MARSH, J. P.
Judgment was rendered in favor of Roberts, from which Clark appealed to the circuit court of Madison county. A motion was there made to quash the attachment, and at the same time a motion by plaintiff to amend his affidavit. The first motion was overruled, and the last sustained, to which an exception was taken. The amended affidavit is in the following form, viz.:
State of Illinois, Madison county:
Levi Roberts being duly sworn, saith, that Jonathan Clark is justly indebted to him in the sum of one hundred dollars, and that the said Jonathan Clark was, at the time of making the original affidavit in this cause, and suing out the attachment, privately moving out of the county of Madison, so that the ordinary process of law could not be served upon him, and therefore prays an attachment.
Sworn to in open court, Aug. 1, 1827.
E. J. WEST, Clerk.
The jury could not agree upon their verdict, and a change of venue upon motion, notice and affidavit, was ordered, at the instance of Clark, to Montgomery county.
Upon a trial there, the jury found a verdict for Roberts for one hundred dollars in damages, and another bill of exceptions taken to the opinion of the court, in refusing to admit as evidence a certain agreement between one Piggot and Clark, which, as it is not noticed in the opinion of the court, is omitted. The principal errors assigned, are:
1. That the court erred in overruling Clark's motion to quash the attachment.
2. The court erred in permitting the plaintiff, Roberts, to amend his affidavit; and
3. The amended affidavit is also void, it not being sworn to according to law.
This action was originally commenced before a justice of the peace, by attachment. The affidavit states that Clark, the defendant below, “is justly indebted to Roberts, in the sum of one hundred dollars, and that said Clark is privately moving his property out of the county,” &c. Judgment was rendered before the justice, in favor of Roberts, for...
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...insufficiencies, other than mere formal defects, invalidate the proceeding and renders the writ void, or to be set aside on motion. Clark v. Smith, 1 Ill. 285; Kruse v. Wilson, 79 Ill. 233; Hallen Jackson, 48 Md. 254; Hargadine v. Van Horn, 72 Mo. 370; Bray v. McClury, 55 id., 128; Cadwell ......
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