Blyth & Fargo Company v. Swensen Brothers

• Decision Date: 26 January 1898
• Citation: 7 Wyo. 303,51 P. 873
• Parties: BLYTH & FARGO COMPANY v. SWENSEN BROTHERS, ET AL
• Court: Wyoming Supreme Court

51 P. 873

7 Wyo. 303

BLYTH & FARGO COMPANY v. SWENSEN BROTHERS, ET AL

Supreme Court of Wyoming

January 26, 1898

RESERVED questions from the District Court for Uintah County. HON. JESSE KNIGHT, Judge.

This is a suit upon a judgment obtained by the plaintiffs against the defendants in a district court in Utah, and the plaintiffs sued out an attachment which was levied upon certain personal property of the defendants in this State. A motion was made by the defendants to dissolve the attachment, and upon the hearing of this motion the court certified certain questions to this court as difficult and important. They are as follows:

1. Is an affidavit for attachment sufficient in which the plaintiff is a corporation and the affidavit setting forth that plaintiff was duly sworn and is signed The Blyth & Fargo Company, by Sherman Fargo, managing agent, and not setting forth that the said agent was sworn, nor setting forth in the body of the affidavit that the said Sherman Fargo was the agent of the plaintiff, and are the words, "Managing Agent," simply descriptive of the person making the same, or do they import an authority?

2. Is an affidavit made and subscribed as above, signed within contemplation of law by the party purporting to make the same? Is it an affidavit of any person? Can any person be held or convicted of perjury upon it? Is it a sufficient affidavit?

3. Is the jurat of an affidavit sufficient under the law that sets forth that the same was "subscribed and sworn to before me," or should the statutory words "subscribed in my presence and sworn to before me" be used to make the same sufficient and valid?

4. Does the affidavit in this case sufficiently describe the nature of the plaintiffs' claim, for the purpose of having the writ of attachment issued? and does an affidavit as described set forth the authority of any person to sign and make the same for the plaintiff?

5. Can a defective affidavit for attachment be amended in form and in substance, or can amendments be made as to matters of form only?

6. Is an amendment which sets forth that the party signing the same was duly sworn and the agent of the plaintiff, an amendment in substance or in form?

7. Is an undertaking sufficient, as contemplated by law, that obligates the payment of costs, as well as damages, or should the same be for damages as by statute stated?

8. Can a corporation make and subscribe an undertaking, and can a copartnership subscribe an undertaking for another without all the parties to the copartnership sign the same?

9. Should the attachment in this case be dismissed and set aside?

The affidavit for attachment is as follows: "Plaintiff in the action above named, being duly sworn, deposes and says That defendants above named are indebted to The Blyth & Fargo Company, said plaintiff in the sum of," etc. [Setting out the indebtedness and the ground upon which the attachment is asked, and signed]

"The Blyth & Fargo Co.,

By Sherman Fargo, Managing Agent.

Subscribed and sworn to before me, this 11th day of December, A. D 1896.

JOHN W SAMMON, Clerk."

(Seal)

Section 2870, Rev. Stat. of Wyo. provides that "an order for attachment shall be made by the clerk of the court in which the action is brought in any case mentioned in the preceding section, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing; first," etc., reciting what the affidavit shall show.

Hamm & Arnold, for plaintiff.

It clearly appears from the whole affidavit, that the same was made by Sherman Fargo. It is true that no name of a deponent is in the body of the paper, but that does not render ineffectual the identification of the person making oath. (People v. Sutherland, 81 N.Y. 6.) The affidavit is sufficient so far as the objection to the person making it, and the manner of signing is concerned. (18 Ency. L., 302; Tessier v. Crowley, 16 Neb. 369; Reed v. Bagley, 24 id., 332; Simpson v. McCarty, 78 Cal. 175; Fremont Cult. Co. v. Fulton, 103 Ind. 393; 3 Ency. Pl. & Pr., 8 and note.) Defects in the affidavit may be supplied by amendment. (Rudolph v. McDonald, 6 Neb., 163; Booth v. Rees, 26 Ill. 45; Kruse v. Wilson, 79 id., 233; Moline v. Curtis, 57 N.W. 161 (Neb.); Josephi v. Clothing Co., 13 Mont. 195; Muth v. Erwin, 14 id., 227; Baker Wire Co. v. Kingman, 44 Kan. 270; Burton v. Robinson, 5 Kan. 287; Furman v. Walter, 13 How. Pr., 348; Struthers v. McDowell, 5 Neb., 491; Irwin v. Bank, 6 O. St., 81; 1 Ency. Pl. & Pr., 681 et seq.)

Melville C. Brown, for defendants.

The purported affidavit is so faulty as to require no argument to show its insufficiency. Is it so nearly a compliance with the statute as to permit of its amendment? The affidavit must be a substantial compliance with the legal requirements. (Wade Attachments, Sec. 56; Cheadle v. Riddle, 6 Ark. 480; Drake v. Hager, 10 Ia. 556; Dandridge v. Stearns, S. & M., 723; Gutman v. Iron Co., 5 W.Va. 22; Irvin v. Howard, 37 Ga. 18; Lamkin v. Douglass, 27 Harr., 517.) The present affidavit is clearly not a substantial compliance with the statute. Not being made by any one--the corporation could not make it, it is not an affidavit at all. A thing to be amended must exist; amendment presumes something to amend. Therefore, amendment is impossible in the case of this affidavit. It would be a new creation. (McReynolds v. Neal, 8 Humph., 12; Maple v. Tunis, 10 id., 434.) Amendments are only allowed under statutory provisions. (Brown v. McClusky, 26 Ga. 577; 28 id., 27; 53 Tex. 264.) Our statute on attachments makes no provision for amendments of either affidavits or bonds. The remedy by attachment is special and extraordinary, hence strict compliance with all statutory requisites is necessary. (Pool v. Webster, 3 Neb., 278; Hughes v. Martin, 1 Ark. 386; Thornburg v. Hand, 7 Cal. 554; Little v. Linnet, 7 Iowa 324; Marnine v. Murphy, 8 Ind. 272; McCook v. Willis, 28 La Ann, 448; Sherwood v. Reed, 7 Hill, 432; Morrison v. Fake, 1 Pinn., 133; Green v. Tripp, 11 R.I. 424; Whitney v. Burnetts, 15 Wis. 61.) If the affidavit as will be seen by foregoing cases is so faulty as to make a writ issued thereon void, it can not be amended.

The affidavit is jurisdictional, and therefore any irregularities or 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 v. Jackson, 48 Md. 254; Hargadine v. Van Horn, 72 Mo. 370; Bray v. McClury, 55 id., 128; Cadwell v. Colgate, 7 Barb., 253; Murray v. Hankins, 65 How. Pr., 511; Zeraga v. Benoist, 7 Rob., 199; Endel v. Leibrock, 33 Ohio St. 254; Stewart v. Mitchell, 10 Heisk., 488; Drake on Attachments, Sec. 89; Inman v. Allporb, 65 Ill. 340.

Under our statute an agent or attorney can make the affidavit for plaintiff, but where the agent makes it, the affidavit must describe affiant as such agent or attorney in the body thereof. (Willis v. Lyman, 22 Tex. 268; Manley v. Headley, 10 Kan. 88.)

CORN, JUSTICE. POTTER, C. J., concurs. KNIGHT, J., did not sit in this case, it having been submitted before he became a member of this court.

OPINION

CORN, JUSTICE.

[After stating the case as above] It is maintained by defendant that the affidavit in this case is not only insufficient but void and in effect no affidavit at all, and therefore not amendable.

Under our code of civil procedure all actions are commenced by filing a petition and precipe for summons, and attachment proceedings are always ancillary. The same particularity of statement in the affidavit need not therefore be required as in cases where the attachment is the basis of the action, and whereby the court obtains jurisdiction. Nevertheless it is absolutely essential that there shall be filed with the clerk an affidavit of either the plaintiff, his agent, or his attorney before an order of attachment is made, or else the order is entirely unauthorized, and the attachment must be discharged upon motion. There need be nothing very formal or technical to constitute a paper an affidavit. But there are certain essentials without which it is not an affidavit. "An affidavit is a written statement in the name of a person called the affiant or deponent, by whom it is voluntarily signed and sworn to or affirmed before an officer authorized to administer an oath. " Rapalje & Lawrence Law Dic., 36.

An oath reduced to writing, sworn to before some officer who has authority to administer it. Bouv. Law Dic., 79. An affidavit is an oath in writing, signed by the party deposing, sworn before, and attested by him who hath authority to administer the same. 1 Bac. Ab., 146.

The supreme court of Illinois in sustaining a proceeding upon an affidavit which was very informal, say, "An affidavit is simply a declaration, on oath in writing, sworn to by a party before some person who has authority under the law to administer oaths." Harris v. Lester, 80 Ill 307. Leaving out of view, therefore, all questions of form, the caption or title, signature of the deponent, the jurat, signature of the officer, etc., it is evident that an affidavit required to be "filed," must be a writing, and must in some way purport to contain a statement or declaration of the person sworn or purporting to have been sworn. Nothing less than this can be an affidavit under any definition, and tried by this lowest standard the paper in question is not an affidavit. It is not the affidavit of the plaintiff, for being a company, it can not take an oath. It is not the affidavit of the agent, for no where in the paper is it purported that the agent makes any statement...