Continental Oil Co. v. Jameson
| Citation | 164 P. 727,53 Mont. 466 |
| Decision Date | 23 April 1917 |
| Docket Number | 3910. |
| Parties | CONTINENTAL OIL CO. v. JAMESON. |
| Court | United States State Supreme Court of Montana |
Appeal from District Court, Phillips County; Frank N. Utter, Judge.
Action by the Continental Oil Company against J. W. Jameson. From a judgment discharging a writ of attachment, plaintiff appeals. Affirmed.
W. B Sands, of Chinook, and Nolan & Donovan, of Butte, for appellant.
R. E O'Keefe, of Chinook, for respondent.
The Continental Oil Company commenced an action against J. W Jameson to enforce payment for certain goods, wares, and merchandise sold and delivered to the defendant. A writ of attachment was issued, and property belonging to the defendant seized. A motion to discharge the attachment, on the ground that an affidavit had not been presented at the time the writ was issued, was granted, and plaintiff appealed from the order.
At the time the writ was issued the plaintiff filed with the clerk of the court the following writing:
"Affidavit of Attachment.
State of Montana, County of Blaine--ss.:
W. B. Sands, being duly sworn, says: That he is the attorney for plaintiff in the above-entitled action. That the defendant in the said action is indebted to it in the sum of eight hundred sixty-one dollars, lawful money of the United States, over and above all legal set-offs and counterclaims, upon an express contract for the direct payment of money, to wit: A balance due for merchandise sold by plaintiff to defendant of eight hundred sixty-one dollars. That the same is now due, and that the payment of the same is not sccured by any mortgage, lien, or pledge upon real or personal property. That the attachment is not sought, and the action is not prosecuted to hinder, delay, or defraud any creditor of the defendant. W. B. Sands.
Subscribed and sworn to before me this 5th day of Nov., A. D. 1915. _________,
Notary Public for Montana Residing at Chinook, Montana.
My commission expires."
An indispensable prerequisite to the issuance of a valid writ of attachment is the presentation to the clerk of the court, by the plaintiff, of an affidavit containing the averments enumerated in section 6657, Revised Codes. Section 7988, Revised Codes, defines an affidavit as follows:
"An affidavit is a written declaration under oath, made without notice to the adverse party."
On the face of the paper copied above it is not an affidavit, for the declarations contained therein do not purport to be made under oath, or before an officer authorized to administer an oath. It is a mere ex parte statement by Mr. Sands. If, as a matter of fact, an oath was administered, and the statements in the writing received the sanction of the oath, but the officer neglected to sign his name to the jurat, the writing was subject to amendment under the express provisions of section 6683; but plaintiff did not ask to amend the writing but contented itself with presenting affidavits in opposition to the motion to discharge, to the effect that the declarations contained in the writing were made under oath, and by inadvertence the...
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