The Fremont Cultivator Company v. Fulton
| Decision Date | 03 November 1885 |
| Docket Number | 12,204 |
| Citation | 3 N.E. 135,103 Ind. 393 |
| Parties | The Fremont Cultivator Company v. Fulton et al |
| Court | Indiana Supreme Court |
From the Jay Circuit Court.
The judgment reversed, at appellees' costs, and the cause is remanded, with instructions to the court below to overrule the motion to set aside and quash the writ of attachment, and to proceed with the case in accordance with this opinion.
S. W Haynes, W. E. Cox, W. A. Thompson, J. W. Thompson, J. W Headington and J. J. M. LaFollette, for appellant.
D. T Taylor, J. M. Smith, T. Bailey, R. S. Gregory and A. C Silverburg, for appellees.
Appellant brought this action upon three promissory notes executed to it by appellees, one of which was due, and two of which were not due. At the same time the complaint was filed, two affidavits were filed. One, in the form of an affidavit in attachment, seems to have been upon the same paper with the complaint. In relation to the other, the record as made by the clerk states: "Said plaintiff also filed the following affidavit in attachment and garnishment." The statements in the bill of exceptions filed below and copied into and made a part of the record here, in relation to this affidavit, are, that the plaintiff, by its attorneys, "filed also its affidavit in attachment and garnishment for process of garnishment." A proper bond and undertaking was also filed at the same time.
It is further stated in the bill of exceptions, "that after the filing of the complaint, affidavits and undertaking, * * * the clerk issued writs of attachment and garnishment in said proceeding and suit." These writs were served, and a large amount of property was attached and taken into the custody of the sheriff.
In relation to the appearance by appellees in the court below, the statement in the record is, Following this, appellees filed an affidavit of the non-residence of appellant, and moved for a rule upon it to file a bond for costs. A day later, appellees moved the court "to set aside and quash the writ of attachment and proceedings thereunder, for the reason that the affidavit filed by the plaintiff to procure said writ to be issued by the clerk is wholly insufficient." This motion was sustained, and appellant by counsel excepted. Afterwards, appellees filed an answer to the complaint, the cause was submitted to the court, a judgment was rendered in favor of appellant for the amount of the note due, and a finding was made, descriptive of the notes not due. On motion of appellees, the court ordered a restitution to them of the goods attached. To this, appellant, by counsel, again excepted.
Appellant has brought up the entire case by this appeal, and although there was no motion for a new trial below, the record and proper assignments here present for review the ruling of the court below in setting aside and quashing the writ of attachment, and in ordering a restitution of the attached property.
It is contended by appellant's counsel, that it was error to entertain and sustain appellees' motion to quash the writ of attachment, because the right to make and insist upon such a motion was waived by an appearance to the action.
We need not decide, or intimate here, what might constitute such a waiver. It is a sufficient answer to appellant's contention, that the record shows but a special appearance to the attachment proceedings.
It is further contended, that it was error to sustain the motion to quash, because it does not specifically point out the supposed defects in the affidavit upon which the writ rested. That kind of an objection might be available had the motion been overruled and the other side were complaining.
If there was no sufficient affidavit, the court properly sustained the motion to quash the writ, although it be conceded that the motion to quash it does not specifically and with certainty point out any defects in the affidavit.
The affidavit upon the same paper with the complaint, and called an affidavit in attachment, we think, is too indefinite and uncertain to meet the requirements of the statute.
As we have seen, there is a second affidavit, filed at the same time, and before the writ of attachment was issued. This the clerk calls an affidavit in attachment and garnishment, and such was the endorsement on the back of the paper by appellant's counsel. It is stated in the bill of exceptions, giving the paper the same name, that it was filed for process of garnishment. It is argued by counsel for appellant, that the writ of attachment may be made to rest upon this affidavit, which they assume is sufficient. This position is combatted by appellees, although they do not seem to so seriously question the sufficiency of that affidavit. Their position is, that in the natural order of things under the statute, the affidavit and writ in attachment precede the affidavit and writ in garnishment; that it should be presumed that the clerk pursued that order, and that hence the court could not, and can not, in order to uphold the writ in attachment and the proceedings under it, look to the affidavit denominated an affidavit in attachment and garnishment. It must be remembered, however, that the record shows affirmatively that this affidavit was on file before and at the time the writ of attachment was issued. That being the case, we know of no valid reason why that writ may not be made to rest upon and be upheld by that affidavit, if, in addition to what is necessary to procure a summons in garnishment, it also contains all that is necessary in an affidavit for attachment. We know of no reason why, in every case, the affidavit for attachment and garnishment may not be combined in one, upon the same paper.
It has been held that a complaint containing also what is required in an affidavit for attachment, if sworn to, may subserve the purposes of a complaint and the required affidavit for attachment. Dunn v. Crocker, 22 Ind. 324; Waples Attachment, 84; Miller v. Chandler, 29 La. Ann. 88. See, also, where the same rule is applied in actions of replevin, Cox v. Albert, 78 Ind. 241; Watts v. Harding, 5 Tex. 386.
In this last case the court said: "The petition is sworn to, by the petitioner; and the objection, that it is not sworn to, in a separate affidavit, does not seem well taken; all that is required by the statute, is, that those facts shall be sworn to, before an attachment shall issue." See, also, Kinney v. Heald, 17 Ark. 397.
Our statute requires the statement of certain things and facts under oath before the writ of attachment may issue, and if that kind of an affidavit is made in ...
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