Beecher v. James

• Decision Date: 31 December 1840
• Citation: 1840 WL 2970,2 Scam. 462,3 Ill. 462
• Parties: WILLIAM A. BEECHERv.EDWARD H. JAMES et al.
• Court: Illinois Supreme Court

2 Scam. 462

3 Ill. 462

1840 WL 2970 (Ill.)

WILLIAM A. BEECHER

v.EDWARD H. JAMES et al.

Supreme Court of Illinois.

December Term, 1840.

AT the March term, 1840, of the Morgan circuit court, the Hon. Samuel H. Treat presiding, the attachment in this cause was quashed because the bond was executed in the name of the appellants, by William Thomas, their attorney in fact, and no evidence was produced that he was authorized to execute the bond. The appellants excepted to the opinion of the court, and brought the cause to this court by appeal.

R. YATES, for appellants.

H. B. MCCLURE, for the appellees, contended, that moving to quash or set aside a writ, is not an appearance under it. 1 Cowen 209; 4 Cowen 148. LOCKWOOD, Justice, delivered the opinion of the court:

The record in this case shows the following facts: On the 28th of November, 1838, the plaintiffs commenced an action of assumpsit on a promissory note against the defendants, and filed a declaration in the cause.

On the same day the plaintiffs filed an affidavit and bond, and sued out an attachment, in aid of said action, under the act concerning attachments. The summons and attachment were returnable at the March term, 1839, and were both returned served at that term.

At said March term, the defendants appeared and filed their plea of non-assumpsit. At the June term, 1839, the cause was tried, and judgment rendered for the plaintiffs.

The defendants then interposed a motion to quash the attachment, for several irregularities which were alleged to have intervened in obtaining the attachment. Whereupon the plaintiffs, by leave of the court, amended their affidavit upon which the attachment was issued, and the court overruled the motion to quash the attachment.

The plaintiffs then moved the court for an order requiring a special execution to issue, directing a sale of the property attached, and also, for judgment against the garnishees summoned in the cause; which motion being resisted, the consideration thereof was continued to the next term.

At the March term, 1840, the attachment was dismissed, and plaintiffs excepted.

The error relied on, is the dismissing the attachment.

The attachment issued in this case, was authorized by § 30 of the act concerning attachments, passed the 12th February, 1833, which declares, that “plaintiffs in any action of debt, covenant, trespass, or on the case upon promises, having commenced their action or actions by summons, may at any term [[[[time] pending such suit, and before judgment therein, on filing in the office of the clerk where such action is pending, a sufficient affidavit and bond, sue out an attachment against the lands and tenements, goods and chattels, rights, credits, moneys, and effects of the defendant; which attachment shall be entitled in the suit pending, and be in aid thereof, and such...