Doty v. Colton
| Decision Date | 30 September 1878 |
| Parties | A. THERON DOTY et al.v.JOHN A. COLTON, for use, etc. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.
Messrs. SAWIN & JONES, and Mr. D. W. C. CASTLE, for the plaintiffs in error.
Mr. J. F. FARNSWORTH, for the defendant in error.
Plaintiff recovered a judgment in the Superior Court against defendant, in an action of assumpsit. Afterward, on the affidavit of the party for whose use the suit was brought, a capias ad satisfaciendum was ordered and issued, upon which defendants were arrested and committed to the common jail of the county, but, as the record shows, they have long since been discharged by order of the county court. Before defendants were discharged, they entered a motion to quash the writ of capias ad satisfaciendum, for the reasons set forth: First, the affidavit, in substance, was not sufficient to warrant the issuing of the writ; second, the affidavit purported to have been sworn to in June, nearly a month after the writ was, in fact, issued; and, third, the notary who administered the oath to affiant did not affix his official seal to his attestation.
As to the first point made, we are of opinion the affidavit sets forth, in detail, such facts as show defendants had property liable to the execution in favor of plaintiff, and fraudulently concealed and withheld the same after demand, and that was sufficient to authorize the issuing of the writ.
In the other respects indicated, the affidavit was, no doubt, defective in some merely formal matters, but plaintiff obtained leave of court for the notary to amend the jurat according to the fact as to the day on which the affidavit was sworn to, and, also, leave for the notary to attach his official seal to the attestation, which he did.
The amendments allowed were merely formal, and did not affect the substance of the affidavit. The mistake in the date of the attestation was a mere clerical error, apparent on the face of it, and the necessity for attaching the official seal arose under a recent statute, and was not observed by the officer. Our statute allowing amendments in judicial proceedings is quite liberal, and was, no doubt, intended to embrace everything of a merely formal character that will promote the ends of justice. After enumerating, specifically, “omissions, imperfections, defects...
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North Chicago St. R. Co. v. Leonard
...officer's certificate would not affect the substance of the affidavit, and might have been made. Pierson v. Hendrix, 88 Ill. 34;Doty v. Colton, 90 Ill. 453. If such proof had been presented, and the court had refused leave to correct the error, that question might have been reviewed; but th......
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The Galena v. William Ennor.
...v. Royse, 71 Ill. 223. A motion to quash the capias is the proper method of reaching defects in the affidavit on which it issued: Doty v. Colton, 90 Ill. 453. Bonds and choses in action are not liable to execution. Rorer on Judicial Sales, 322; Tuttle v. Wilson, 24 Ill. 553; Prout v. Grout,......