Dunlap v. Clay

• Court: Mississippi Supreme Court
• Writing for the Court: COOPER, C. J.
• Citation: Dunlap v. Clay, 65 Miss. 454, 4 So. 118 (Miss. 1888)
• Decision Date: 16 April 1888
• Parties: VIRGINIA V. DUNLAP, EXECUTRIX, v. A. Q. CLAY

4 So. 118

65 Miss. 454

VIRGINIA V. DUNLAP, EXECUTRIX, v. A. Q. CLAY

Supreme Court of Mississippi

April 16, 1888

APPEAL from the Circuit Court of Nenton County, HON. A. G. MAYERS Judge.

Virginia V. Dunlap, executrix of the last will and testament of D. R Dunlap, deceased, sued out an attachment against A. Q. Clay. The defendant moved to dismiss the attachment "for want of affidavit." The paper which purported to be the affidavit upon which the attachment was based was in the usual form, except that it was not subscribed by the affiant mentioned therein, and the jurat thereto was not signed by the justice of the peace before whom the affidavit was made as therein stated. The testimony of the justice of the peace and of J. V. Knight, who was mentioned in the affidavit as the affiant therein, (and there was no other testimony concerning the affidavit) showed that the affidavit was read to Knight, agent of the plaintiff in attachment, in the presence of the justice of the peace, then handed to the latter, who said to Knight will you swear to this paper, and Knight answered that he would, "but did not hold up his hand and swear." The evidence of both these witnesses was to the effect that they thought everything was done that was necessary to make the oath binding; and that by mistake the attachment bond only, and not the affidavit was signed by Knight, both being printed on the same sheet of paper, though the agent thought he had signed the affidavit. The justice of the peace failed to sign the jurat to the affidavit because of the same mistake.

The court rendered a judgment sustaining the defendant's motion and dismissing the attachment proceedings. Thereupon the plaintiff appealed to this court.

Judgment reversed and cause remanded.

S. B Watts, for the...