Phelps v. Young
| Decision Date | 31 December 1830 |
| Citation | 1 Ill. 327 |
| Parties | ALEXIS PHELPS, Appellant, v. ROBERT R. YOUNG, Appellee. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL FROM ADAMS.
Under the attachment law of 1827, which requires that the amount and nature of the indebtedness should be specified in the affidavit, it is sufficient to state that the non-resident “is justly indebted to the plaintiff in the sum of $____, by his certain instrument in writing signed by him.
Upon an order for a change of venue and granted, but before the record is removed, an affidavit of the materiality of witnesses for the purpose of taking their depositions, is properly made in the circuit court of the county where the suit is brought, and the computation of time and distance must be made from that county.
It is not necessary that the magistrate should state the time and place of taking the depositions.
This is an appeal from the Adams circuit court. The grounds relied upon for a reversal of the judgment of the circuit court, are,
1. The insufficiency of the affidavit required by the provisions of the act authorizing the suing out of attachments.
2. The alleged irregularity in the mode of taking the depositions which were read on the trial.
The proceeding must be considered as one against a nonresident debtor, and all the forms of the statute appear to have been complied with, unless the affidavit upon which the attachment was sued out, should be defective in not sufficiently specifying the nature of the indebtedness. The statute requiresa1 that the plaintiff in the attachment shall specify in his complaint, on oath or affirmation, the amount and nature of the indebtedness of the defendant. The deposition sets out that Phelps is justly indebted unto the plaintiff “in the sum of fourteen hundred dollars by his certain instrument of writing signed by him;” and the question is thus presented for determination whether this is the description of specification intended by the statute. It would seem at a first examination of the object of the act, that there was not that compliance with its spirit in the specification given, as its framers intended, but when it is recollected that the plaintiff has filed his declaration, in which the entire cause of action is fully set forth, the objection loses its force; and the more completely so, as the defendant did, at no time in the court below, except to the sufficiency of the affidavit for the cause now alleged, or for any other.
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Bates v. Jenkins
...of the court below. Am. Dig., 205. He also contended that the affidavit was not such as the statute requires, and cited Phelps v. Young, 1 Ill. 327.Blackwell, in reply.BROWNE, J., delivered the opinion of the Court.a1This was an appeal from the circuit court of Jo Daviess, to reverse a judg......