Lawver v. Langhans
| Decision Date | 31 January 1877 |
| Citation | 85 Ill. 138,1877 WL 9504 |
| Parties | JOHN S. LAWVERv.EMIL H. LANGHANS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of DeWitt county; the Hon. LYMAN LACEY, Judge, presiding.
Messrs. MOORE & WARNER, for the plaintiff in error.
Messrs. FULLER & GRAHAM, for the defendant in error.
This writ of error was sued out to reverse a judgment rendered in the circuit court of DeWitt county on the 24th day of December, 1875, in an action by attachment, commenced by Emil H. Langhans, against John S. Lawver, on the 17th day of November. Various errors in regard to the form and character of the proceedings, from the commencement of the action until the final rendition of the judgment, have been assigned, which are claimed to be sufficient to reverse the judgment.
It is first urged, that the affidavit upon which the attachment issued was not sufficient, as it does not show “what the fraudulent representations were; that they were reduced to writing and signed by Lawver.” The statute requires that the affidavit shall set forth the nature and amount of the indebtedness, after allowing all just credits and set-offs, and shall also contain one or more of the nine causes for which an attachment may issue, one of which is non-residence of the defendant. The affidavit in question states that the defendant is indebted to the plaintiff in the sum of $3504.15, after allowing all just credits and set-offs; then follows a detailed statement of the manner in which the indebtedness arose, and it concludes with an allegation that the defendant is a non-resident of the State of Illinois. This we regard as sufficient to authorize the attachment to issue. If the defendant was a non-resident and was indebted to the plaintiff in any amount exceeding $20, it was enough for the plaintiff to file an affidavit containing these facts, as provided in section two of the Attachment Act, to entitle him to the writ. The question, whether the affidavit would have been sufficient had defendant been a resident of the State, and the plaintiff obtained the writ solely upon the ground that the debt was fraudulently contracted by the defendant, does not arise, and hence it is not necessary to determine whether the affidavit conforms to the ninth clause of section one of the Attachment Act, or not. It is sufficient, so far as this action is concerned, that the writ of attachment properly issued on the ground that the defendant was a non-resident of the State.
Objection is also made to the bond and notice. On the filing of the affidavit two writs were issued, one to the county of DeWitt, the other to Union county. The words in the bond are, that an attachment writ had been prayed. It is insisted this is not as broad as it should be. The objection made to the notice is, that it did not state that two writs had issued, nor to what county the second one was directed. Both of these questions are settled by the decision in Morris v. Trustees of Schools, 15 Ill. 266, where it is held that objections to a defective attachment bond can not be raised, for the first time, in this court. They should be made in the court below, so that an amendment, if desired, can be made. As to the notice, it was held that it was unnecessary to state to what counties the writs of attachment issued, or give any description of the property attached.
As this case is conclusive of the questions raised, it is not deemed necessary to consume time in their discussion. It is also claimed, that in the first publication of the notice the plaintiff's name appeared as Langhaus, instead of Langhans, which was not corrected until the second week of the publication. We do not, however, regard the affidavit of the defendant filed on his motion in the cause, sufficient to overcome the evidence in the record that the notice was correct. The record contains the notice, which is correct as to name, and...
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