Ramsay Motor Co. v. Wilson

• Decision Date: 20 March 1934
• Docket Number: 1836
• Citation: 47 Wyo. 54,30 P.2d 482
• Parties: RAMSAY MOTOR CO., v. WILSON
• Court: Wyoming Supreme Court

30 P.2d 482

47 Wyo. 54

RAMSAY MOTOR CO., v. WILSON

No. 1836

Supreme Court of Wyoming

March 20, 1934

APPEAL from the District Court, Carbon County; V. J. TIDBALL, Judge.

Action by Ramsay Motor Company against J. D. Wilson, M. D. From an order sustaining a motion for leave to amend an attachment affidavit and denying motion of defendant to quash and vacate the attachment phase of the action, defendant appeals.

Affirmed.

The cause was submitted for the appellant on the brief of D. R Higley of Rawlins.

The affidavit for attachment and subsequent proceedings thereon were void and could not be cured by amendment, the furnishing of a discharge bond did not waive the defect. Sec. 89-1727 1807, R. S. 1931; Becker v. Hopper, 22 Wyo. 237. Affidavit of acknowledgment taken by a party in interest is void. Bank v. Bank, 11 Wyo. 32; Harney v Montgomery, 29 Wyo. 362. The rule applies in attachment affidavits. Ward v. Ward, 20 O. C. C. R. 136; Leavitt and Company v. Rosenberg Brothers, 93 N.E. 904; Iron Company v. Hazen & Co., 11 O. C. C. R. (N. S.) 48; O'Brien v. Pope (W. Va.) 114 S.E. 239; 2 C. J. 329; Campbell v. Brady (Tenn.) 11 S.W. 697; Crawford v. Ferguson (Okla.) 115 P. 278; Cook v. Olds Works (Ohio) 19 C. C. 732; Swearingen v. Houser (Kan.) 14 P. 436; Carr v. Hooper (Kan. ) 29 P. 398; Horkey v. Kendall (Nebr.) 73 N.W. 953; Dobry v. Company (Nebr.) 77 N.W. 656; Linck v. City (Ill.) 31 N.E. 123; Bank v. Cronin (Nebr.) 114 N.W. 158. The affidavit being void cannot be cured by amendment. Blyth & Company v. Swensen Bros., 7 Wyo. 303; Bank v. Packing Company (Va.) 77 S.E. 451; Pope Insurance Company, 24 O. S. 481; Company v. Getchell (Cal.) 110 P. 331; Bank v. Scurich (Cal.) 95 P. 911; Bank v. Griffith (Mo.) 183 S.W. 805. The furnishing of an attachment discharge bond did not waive the defect. Sections 89-3325, 3342, 3369, R. S. 1931; William Edwards Company v. Goldstein, 88 N.E. 877; Jaynes v. Platt, 24 N.E. 262; Alexander v. Jacoby, 23 O. S. 358; 72 A. L. R. 127.

The cause was submitted for respondent on the brief of J. R. Armstrong of Rawlins.

The affidavit for attachment is not a nullity and even if irregular is subject to amendment; the defect was waived by furnishing an attachment discharge bond; and affidavit of attachment is not enumerated as one of the documents entitled to appear in a record on appeal. An attachment affidavit may be sworn to before a Notary Public in or out of the state. Sec. 89-1727, 1805, R. S. 1931. The office of a Notary is ministerial. De Camp v. Archibald, 50 O. S. 618, 35 N.E. 1056. Section 9-114, 115, 116, R. S. 1931. There must be a pecuniary interest on the part of the Notary in order to invalidate his act. Brown v. Parker, 97 F. 446; Bank v. Bank, 11 Wyo. 32. An interest of the Notary was shown in the case of Boswell v. Bank, 16 Wyo. 161; Harney v. Montgomery, 29 Wyo. 362; Ryburn v. Moore, 10 S.W. 393; Kosminsky v. Raymond (Texas) 51 S.W. 51. The administration of an oath is ministerial. Hollenbeck v. Detrick (Ill.) 44 N.E. 732; Reavis v. Cowell, 56 Cal. 588; McDonald v. Willis (Mass.) 9 N.E. 835; City v. Simmons (Ala.) 130 So. 896; Genest v. Ass'n 11 N. M. 251, 67 P. 743. Even if defective, the affidavit is subject to amendment. Sullivan v. Hall (Mich.) 48 N.W. 646; Lynch Co. v. Judge (Mich.) 88 N.W. 387; Bradley v. Andrews, 51 Mich. 100; Germaine v. City (Mich.) 63 N.W. 78; Horkey v. Kendall (Nebr.) 73 N.W. 933; Swearingen v. Howser (Kan.) 14 P. 436; Shanholtzer v. Thompson (Okla.) 103 P. 595; Carolina v. Montgomery (Okla.) 177 P. 612; Myers v. Smith, 29 O. S. 120. The furnishing of an attachment discharge bond waived the defect. Section 89-3325, R. S. 1931. Twenty-eight separate jurisdictions have held that an alleged defect in the affidavit is cured by giving a discharge bond. Crable & Son v. O'Connor (Wyo.) 133 P. 376; 6 C. J. 337, 338; 72 A. L. R. 127; Myers v. Smith, 29 O. S. 123; Alexander v. Jacoby, 23 O. S. 358; Edwards Company v. Goldstein (Ohio) 88 N.E. 877; Jaynes v. Platt (Ohio) 24 N.E. 262; Roy v. Union Mercantile Co., 3 Wyo. 417; Washer v. Campbell (Kan.) 21 P. 671; Moffitt v. Garrett (Okla.) 100 P. 533; Connor Company v. Fisher (Ariz.) 255 P. 996; Bailey v. Company (Cal.) 91 P. 416; Ubico Company v. Poythress (Ga.) 113 S.E. 815; Butcher v. Cappon & Leather Company (Mich.) 112 N.W. 110; Wharton v. Congor (Miss.) 9 Smedes & M. 510; Burnham Company v. Strahl (Nebr.) 166 N.W. 266. The foregoing authorities show that thirty states have adhered to the rule referred to. It is generally held that one appearing and cross-examining a witness whose deposition is being taken, waives objection to the commissioner. 18 C. J. 624; Shutte v. Thompson (U. S.) 21 L.Ed. 123; Buddicum v. Kirk (U. S.) 2 L.Ed. 444. The modern function of a Notary Public is to take the acknowledgment or swear the subscriber to some document and public policy can better be served if the attorney who draws the instrument acts as notary for his client. Even if it be irregular, it is amendable by having the affidavit sworn to before another Notary Public, as respondent did in the case at bar. At most, the affidavit is voidable and not void. An affidavit of attachment is not enumerated as one of the instruments that should be included in a record on appeal. Section 89-4906, R. S. 1931. The method of review of the order should have been by proceedings in error. Middleton v. State (Wyoming) 241 P. 715. Nothing should be included in a record on appeal except what is pointed out by the statute. Kabell v. Kabell, 42 Wyo. 360; Syndicate Company v. Bradley, 6 Wyo. 171; Schloredt v. Boyden, 9 Wyo. 392; Sharman v. Huot (Mont.) 52 P. 558.

D. H. Higley in resistance of motion to dismiss appeal.

An order dissolving or sustaining an attachment is a final order and may be reviewed on proceedings in error instituted before judgment. First National Bank v. Moorcroft Ranch Company, 5 Wyo. 50. Any judgment or order reviewable by proceedings in error may be reviewed by direct appeal. Secs. 89-4901, 4915, R. S. 1931.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This is a proceeding by direct appeal to review an order of the District Court of Carbon County sustaining a motion of the Ramsay Motor Company, as plaintiff below, respondent here, for leave to amend an attachment affidavit, and denying a motion of J. D. Wilson, as defendant below, appellant in this court, to quash and vacate the attachment phase of the action presently to be mentioned. The parties will generally be referred to hereinafter as they appeared in the trial court, or by their respective names.

On March 10, 1933, the plaintiff brought suit, in the district court aforesaid, to recover from the defendant, the sum of $ 242.10 on an account. With its petition was filed a precipe for an attachment writ and "affidavit for an attachment" and the usual bond required in such cases. Writ and summons were issued forthwith and, the same day, the sheriff thereunder seized a Chrysler automobile belonging to the defendant, which was duly appraised as required by law. On the 11th day of March, 1933, the defendant filed a bond conditioned to "perform the judgment of the court," pursuant to the provisions of section 89-3325, Wyo. Rev. St. 1931. On March 25th following, the defendant filed his motion to quash and vacate the attachment proceedings already mentioned, upon the ground that the affidavit aforesaid was fatally defective in that it was sworn to before a notary public who was the attorney representing the plaintiff in the cause. This motion was supported by the affidavit of counsel for defendant for the purpose of establishing the truth of the ground thus alleged, and, so far as that matter is concerned, the fact is conceded herein.

April 4, 1933, the plaintiff by motion requested the court for an order permitting it to amend the attachment affidavit by allowing its president to swear to the said affiidavit before another notary public. The several motions of the parties were, in due course, heard by the district court, and on April 26th, following, the order now attacked was entered, disposing of them as herein above recited.

The Ramsay Motor Company has filed in this court a motion to dismiss the appeal taken in the cause, on the ground, in substance, that section 89-4906, Wyo. Rev. St. 1931, states what documents shall appear in the record on appeal, and that an attachment affidavit is not there enumerated as one of such documents; and that, as the appeal is predicated upon an alleged error appearing in this affidavit, the order is not subject to review, under the State law governing direct appeals to this court. The point is argued, in support of this motion, that the only method by which a review of the order in question could be obtained was by proceedings in error.

The statute thus relied upon is to the following effect:

"In civil causes appealed to the supreme court under the provisions of this article, the clerk of the district court shall prepare a record on the appeal which shall consist of the original or certified copies of the pleadings, motions demurrers, instructions given and refused, verdict and findings, certified copies of the journal entries, including the entry of the judgment or order appealed from, and the notice of the appeal in the cause, securely attached together in their chronological order, and if a transcript of the testimony is prepared and filed, and is brought up on the appeal, the transcript with the exhibits and documentary evidence contained therein or attached thereto as a part thereof, shall also form a part of the record on appeal. When so prepared, the whole of such record shall be paged and numbered consecutively, and shall be certified to by the clerk of the district court as true and correct...