Clarke Banking Company v. Wright

• Decision Date: 30 June 1893
• Docket Number: 4812
• Parties: CLARKE BANKING COMPANY v. ISAAC K. WRIGHT
• Court: Nebraska Supreme Court

55 N.W. 1060

37 Neb. 382

CLARKE BANKING COMPANY v. ISAAC K. WRIGHT

No. 4812

Supreme Court of Nebraska

June 30, 1893

ERROR from the district court of Buffalo county. Tried below before HAMER, J.

REVERSED AND REMANDED.

J. M Easterling, H. M. Sinclair, and Sinclair & Brown, for plaintiff in error.

Gid E Newman, contra.

OPINION

MAXWELL, CH. J.

On the 1st day of April, 1891, the plaintiff commenced an action in the district court of Buffalo county against the defendant to recover money alleged to be loaned to the defendant by the plaintiff. On the same day the plaintiff, by J. M. Easterling, filed an affidavit for an order of attachment in said cause, as follows:

"STATE OF NEBRASKA, BUFFALO COUNTY. ss.

"In the District Court of Buffalo County, Nebraska.

"THE CLARKE BANKING COMPANY v. ISAAC K. WRIGHT.

"J. M. Easterling, being first duly sworn, upon his oath deposes and says that he is the duly authorized attorney for the Clarke Banking Company, a corporation duly organized under the laws of the state of Nebraska and doing business in Buffalo county, Nebraska, with office and place of business at Sartoria, in said county and state; that plaintiff has commenced an action against Isaac K. Wright in the district court of Buffalo county to recover the sum of $ 250, with ten per cent interest from March 4, 1891, now due and payable to the plaintiff from defendant for money loaned the defendant at his special instance and request.

"Affiant further says that plaintiff's claim is just, and that plaintiff ought, as he believes, to recover thereon the sum of $ 250; and that the defendant is a non-resident of the state of Nebraska, as he verily believes.

"J. M. EASTERLING.

"Subscribed in my presence and sworn to before me this 1st day of April, 1891.

"[SEAL.] WILL G. NYE,

"Clerk of the District Court of Buffalo County, Neb."

On the filing of said affidavit an order of attachment was issued and certain property of the defendant attached. Afterwards the defendant appeared and filed the following motion:

"Now comes the defendant, by his attorney, Gid E. Newman, and making a special appearance, objects to the jurisdiction of the court over the subject-matter of this suit for the reason that the affidavit filed herein, preliminary to the issuing of the attachment, is insufficient in law, because it states that the defendant is a non-resident, upon information, as he verily believes, and not in positive terms."

On the 13th day of June, 1891, and while the motion to dissolve the attachment was pending, the plaintiff made application to the court for leave to amend the affidavit for attachment as follows:

"Now comes the plaintiff and asks leave of the court to amend the affidavit of attachment in the above entitled cause, so that said affidavit may positively state that said defendant is a non-resident of this state."

The application to amend was overruled and the...