Greene v. Tripp
| Decision Date | 24 January 1877 |
| Citation | 11 R.I. 424 |
| Court | Rhode Island Supreme Court |
| Parties | C. C. GREENE & BROTHER v. BENJAMIN TRIPP, City Treasurer of the City of Providence. |
A statute being in force providing that " No attachment of property shall be made upon mesne process, unless an affidavit of the plaintiff, or of some person in his behalf shall be indorsed on the writ, setting forth that the plaintiff has a just claim or demand against the defendant upon which he has a reasonable expectation of recovering in said action a sum sufficient to give jurisdiction thereof to the court to which said writ is made returnable, and that the defendant has property which he does not intend to apply to the payment of the plaintiff's claim" : -
The plaintiffs sued out a writ of attachment with the following affidavit indorsed thereon: " I, C. C. G., one of the plaintiffs, and in behalf of the plaintiff copartnership named in the within writ, make affidavit and say, that I verily believe we have a just claim or demand against he defendant named in said writ, upon which we have a reasonable expectation of recovering in said action a sum sufficient to give jurisdiction thereof to the court to which said writ is made returnable; and that the defendant has property which he does not intend to apply to the payment of our said claim.
" (Signed)
C. C G.
" Subscribed and sworn to," & c.: -
Held, that the affidavit was insufficient and the attachment void; the words, " " I verily believe," not importing the certainty required by the statute.
A garnishee cannot be held if the original attachment served on him is void, notwithstanding judgment has been obtained against the debtor defendant.
If a writ is served by summons and by foreign attachment, the court having jurisdiction of the case by virtue of the summons cannot, in the original action, consider the validity of the attachment.
CASE against the defendant as garnishee. Heard by the court.
The plaintiffs sued one Isaac Austin,[1] by writ dated Novem ber 10, 1870, service thereof being made on Austin by summons, and on the city of Providence by process of foreign attachment. Judgment was given for the plaintiff, but as the city of Providence denied the validity of the process against it, this action was brought.
When the writ against Austin was issued, a statute, Public Laws, cap. 857, § 4, March 31, 1870, was in force, providing that " No attachment of property shall be made upon mesne process, unless an affidavit of the plaintiff, or of some person in his behalf, shall be indorsed on the writ, setting forth that the plaintiff has a just claim or demand against the defendant, upon which he has a reasonable expectation of recovering in said action a sum sufficient to give jurisdiction thereof to the court to which said writ is made returnable, and that the defendant has property which he does not intend to apply to the payment of the plaintiff's claim."
CALEB C. GREENE.
Dexter B. Potter, for plaintiffs.
Nicholas Van Slyck, City Solicitor, for defendant.
We have come to the conclusion that the affidavit in the original action was not such as was required to authorize an attachment. The statute required such an affidavit to set forth the existence of certain facts. The affidavit made, as to some of those facts at least, simply sets forth the affiant's belief in their existence. This was not enough. The statute is to be strictly construed. A person might be willing to swear to his belief when he would not be willing to swear positively. And it would be more difficult to convict him of perjury for a false oath to his belief than for a false oath to facts positively taken. The attachment was therefore illegal. ...
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Mitchell v. Ada Inv. Co.
... ... P. 539; Whitney v. Brunette, 15 Wis. 61; Walker ... v. Roberts, 4 Rich. (S. C.) 561; Schwartz v ... Cowell, 71 Cal. 306, 12 P. 252; Greene v. Trip, 11 R. I ... WM. E ... LEE, J. William A. Lee, C. J., and Givens and Taylor, JJ., ... [42 ... Idaho ... Pierson, 18 Cal. 152, ... 79 Am. Dec. 162; Producers' Naval Stores Co. v ... McAllister, 278 F. 13; Greene v. Tripp, 11 R.I ... 424; Jarvis v. Barrett, 14 Wis. 591; Hillman v ... Griffin, 6 Cal. Unrep. 354, 59 P. 194, 696; Barth v ... Burnham, 105 Wis. 548, ... ...
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Crane Co. v. Epworth Hotel Construction & Real Estate Co.
...366. To obtain an attachment writ in the State of Rhode Island, the statute requires a positive affidavit as to certain facts. In Greene v. Tripp, 11 R.I. 424, the affidavit for attachment used the words, "I verily believe." It was held these words did not import the certainty required by t......
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Weller v. Western State Bank of Waukomis
...thereon, and rightful execution of the judgment"; citing Wap. Attachment, 344-347; Lovejoy v. Albee, 33 Me. 414, 54 Am. Dec. 630; Greene v. Tripp, 11 R.I. 424; Pierce Carleton, 12 Ill. 358, 54 Am. Dec. 405. And in the same opinion, the court, citing Wap. on Attachment, 382, quotes with appr......
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Crane Co. v. Epworth Hotel Construction & R. E. Co.
...366. To obtain an attachment writ in the state of Rhode Island the statute requires a positive affidavit as to certain facts. In Greene v. Tripp, 11 R. I. 424, the affidavit for the attachment used the words, "I verily believe." It was held these words did not import the certainty required ......