Tessier v. Crowley
| Citation | 20 N.W. 264,16 Neb. 369 |
| Parties | TESSIER v. CROWLEY |
| Decision Date | 07 August 1884 |
| Court | Supreme Court of Nebraska |
OPINION TEXT STARTS HERE
Error from Gage county.T. D. & J. E. Cobbey and W. H. Ashby, for plaintiff.
Hazlett & Bates, for defendant.
There are two points made by the plaintiff in error in his petition in error. They will be noticed in the inverse order in which they are therein stated.
“(2) The said court erred in overruling the motion to quash the writ of attachment in the said action.” The point made in the brief under the above head is that the affidavit upon which the attachment was issued is defective and void in that it does not show that it was made by the plaintiff, his agent, or attorney. The provisions of the statute applicable to this point are as follows: Sec. 199. “An order of attachment shall be made by the clerk of the court in which the action is brought, in any case mentioned in the preceding section, when there is filed in his office an affidavit of the plaintiff, his agent, or attorney, showing,” etc.
The affidavit in the case at bar is in the following form: “Charles O. Bates, one of the attorneys for the plaintiff, being first duly sworn,” etc.
It is contended that the attorneyship of Charles O. Bates should have been asserted as an issuable fact, and not merely by way of recital. It will be observed that our statute above quoted is quite different from the corresponding clause of the statute of Wisconsin, under which most of the cases cited by plaintiff in error were decided. That clause is as follows: etc. Under this provision it has been repeatedly held, in effect, that where the affidavit is not made by the plaintiff himself, the fact that it is made on his behalf must be stated by the affiant, under oath, in the body of the affidavit. And some cases have gone still further, and hold that the affidavit must further show why it was not made by the plaintiff, and the affiant's means of knowledge. There is a wide difference between the Codes of Nebraska and Wisconsin in respect to the remedy by attachment, both in theory and in detail. In Wisconsin, the writ of attachment is what is sometimes called a purchasable writ. It may be had by simply filing a præcipe and paying the fee; but before it can be executed, (served,)--before the defendant's property can be seized by virtue of it,--the plaintiff, or some one in his behalf, shall make and annex thereto an affidavit, etc. This is usually, and always may be, done after the writ has been taken away from the clerk's office, usually in the private office of the plaintiff's attorney. It is subject to the inspection of no one until it is served by seizing the defendant's property. Such is not our system. Here attachment is a remedy merely ancillary to an action for the recovery of money. The action must have been commenced by the issuance of a summons, then “an order of attachment shall be made by the clerk of the court in which the action is brought, * * * when there is filed in his office an affidavit of the plaintiff, his agent, or attorney,” etc. Thus the issuance or “making” of an order of attachment is a quasi judicial act on the part of the clerk, depending for its validity, and the power on his part to make it, upon the filing in his office of such affidavit. The clerk knows, or may know, who is the attorney of the plaintiff, who has commenced the suit, and, in case of agency, may require evidence of such agency, and in neither case is he restricted to the oath of such attorney or agent for his warrant for treating them as entitled to act in that capacity. And when he does so recognize them, the court will so regard them prima facie.
I conclude, therefore, that there was no error on the part of the district court in overruling the motion to quash the writ.
“(1) The court erred in overruling the motion to dissolve the attachment in said action.” There are attached to...
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