Sumner Lumber Co. v. Deen
| Decision Date | 11 February 1913 |
| Citation | 65 Fla. 149,61 So. 241 |
| Parties | SUMNER LUMBER CO. v. DEEN et al. |
| Court | Florida Supreme Court |
Error to Circuit Court, Marion County; W. S. Bullock, Judge.
Action by the Sumner Lumber Company against G. W. Deen and J. M Bell. Judgment for defendants, and plaintiff brings error. Reversed.
Syllabus by the Court
An affidavit in attachment, which states that the defendant is indebted to the plaintiff in a named sum, and 'that the same is an actual and existing debt or demand,' is not fatally defective, and may be amended.
COUNSEL Hocker & Duval, of Ocala, for plaintiff in error.
Davis & Martin, of Ocala, for defendants in error.
This action was begun by attachment issued and levied under the statute. The following is the substance of the affidavit on which the attachment was issued:
'Before the subscriber, a notary public, personally came T. E. Williams, who, being duly sworn, says: That he is the president of Sumner Lumber Company, the abovenamed plaintiff; that the defendants George W. Deen and J. M. Bell, as copartners under the style and firm name of Deen & Bell, are indebted to the Sumner Lumber Company in the sum of $9,984.00; that the same is an actual and existing debt or demand; that the defendants reside and each of them resides beyond the limits of the state of Florida; and that affiant expects to recover a judgment against the said defendants in the sum of, to wit, $9,984.00.'
A motion to dissolve the attachment on the following grounds was made:
'(1) The affidavit of T. E. Williams upon which said writ of attachment was based does not allege that the person making said affidavit had reason to believe in the existence of one or more of the specified grounds for attachment enumerated in section 2102 of the General Statutes of Florida.
'(2) The said attachment affidavit does not state that the debt sued on is actually due as required by law.
'(3) It appears by the same affidavit that this suit is for recovery of a debt or demand not actually due, and no ground for attachment on such cause of action is alleged.
'(4) The plaintiff did not produce before the officer granting the attachment herein proof of the existence of any one or more of the special grounds for attachment named in section 2102, General Statutes of Florida.
'(5) The nonresidence of defendants is no ground for attachment on a debt or demand not actually due, and no allegation that the debt herein sued on is actually due is in the record.'
Plaintiff filed a proffered amendment and moved 'the court for leave to amend the affidavit in the above-styled cause, said affidavit having been made on the 27th day of April, 1912, by adding thereto, after the words, 'debt or demand,' the words 'and that the same is actually due, and affiant has reason to believe that the defendants are, and each of them is, a resident of another state than Florida, and that each of them resides beyond the limits of the state of Florida,' and for permission for L. W. Duval, one of the attorneys of record in the said cause for the plaintiff, to swear to the affidavit as amended.'
The attachment was dissolved by the court on the ground that, the affidavit being defective, it was without jurisdiction. Plaintiff filed a declaration. The defendants moved to dismiss the cause:
'(1) Because the attachment by which this suit was commenced was dissolved on motion before appearance to the action.
'(2) Because the court is without jurisdiction of the persons of these defendants.
'(3) Because the attachment...
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