United States Capsule Company v. Isaacs
| Decision Date | 20 December 1899 |
| Docket Number | 2,532 |
| Citation | 55 N.E. 832,23 Ind.App. 533 |
| Parties | UNITED STATES CAPSULE COMPANY v. ISAACS ET AL |
| Court | Indiana Appellate Court |
From the Marion Superior Court.
Affirmed.
S. N Chambers, S. O. Pickens and C. W. Moores, for appellant.
Lucius B. Swift, for appellees.
The appellees, Solomon Isaacs, Emil Calmon and Gustav B. Calmon under the firm name of S. Isaacs and Company, commenced their action in attachment against appellant. Their complaint was in three paragraphs. With the complaint an affidavit of attachment was filed, a writ duly issued and levied upon certain real estate. Counsel for appellant thereupon entered their special appearance and moved to quash the writ of attachment. This motion was based upon two reasons: (1) "Because it does not appear from the affidavit that there is property of the defendant within the jurisdiction of this court subject to execution;" and (2) "that the affidavit shows on its face that it is on the balance of a judgment against the National Capsule Company, and not against this defendant, and it fails to show that there is any cause of action against the defendant." This motion was overruled, and the motion, together with the ruling thereon, are brought into the record by bill of exceptions. Appellant then asked leave to enter its further special appearance and file its plea in abatement to the affidavit in attachment, which motion was overruled, and such motion and ruling thereon are also brought into the record by bill of exceptions. Appellant then entered its appearance and filed its plea in abatement to the affidavit in attachment, to which the original plaintiffs demurred, and the court sustained the same. Appellant then demurred to each paragraph of complaint, which demurrer was overruled and exceptions were reserved? Appellant then filed an answer to each paragraph of complaint, and to the attachment proceedings, in general denial. Appellee Groedel filed his complaint under the original action and the issue was joined thereto by answer in denial. Under the issues thus joined the case was tried by the court, resulting in a general finding and judgment for appellees for the several amounts found to be due them, and sustaining the attachment proceedings. Appellant's motion for a new trial was overruled, and on appeal it has assigned errors as follows: (1) The court erred in overruling the motion to quash the writ of attachment; (2) the court erred in overruling the motion for leave to appear specially and file a plea in abatement; (3) the court erred in sustaining the demurrer to appellant's plea in abatement; (4, 5, and 6) the court erred in overruling the demurrer to each paragraph of the complaint of Isaacs & Company; (7, 8, and 9) the court erred in overruling the motion for a new trial upon each of the issues submitted. We will consider the assigned errors in their order, in so far as it may be necessary to determine whether or not any of them are predicated upon reversible errors.
The affidavit in attachment, omitting the formal parts, is as follows: "Lucius B. Swift, being duly sworn, says that he is the plaintiffs' attorney in the above entitled cause, and on behalf of plaintiffs he says that the plaintiffs' claim in said action is on a balance of a judgment entered in cause No. 6956, in order-book 111, p. 489, in the circuit court of Marion county, Indiana, in cause No. 6956, Solomon Isaacs, et al., v. National Capsule Company, and described in the complaint in this action, and on account for goods sold and delivered, also described in said complaint; that affiant believes that the plaintiffs ought to recover thereon $ 1,310.37, with interest, etc., and that the defendant is a nonresident of the State of Indiana." We have above noted the objections to the affidavit. Attachment is a statutory proceeding, and, as defined by Mr. Drake, is "A provisional remedy whereby a debtor's property, real and personal, or any interest therein capable of being taken under a levy and execution, is placed in the custody of the law to secure the interests of the creditor pending the determination of the cause." Drake on Attachment, § 5; Elliott's Gen. Prac., § 378. It is the well settled rule in this jurisdiction that, as such proceedings are of purely statutory origin the statutory provisions relative thereto must be strictly followed. Louisville, etc., R. Co. v. Parish, 6 Ind.App. 89, 33 N.E. 122; Wade on Attachment, §§ 551-3, 733; 1 Am. & Eng. Ency. of Law, 894. The affidavit shows that appellant was a nonresident, and hence there existed a statutory cause for an attachment. § 913 Horner 1897. Before an attachment writ can issue, it is necessary for the plaintiff to show by affidavit four things: (1) The nature of his claim; (2) that it is just; (3) the amount he believes he ought to recover; and (4) that there exists in the action one of the grounds for an attachment. The affidavit in this case clearly covers the last three requirements, for it is averred that the claim is just, the amount plaintiffs ought to recover, and that appellant is a nonresident. Appellant urges that the affidavit is defective because is does not show that the appellant had property within the jurisdiction of the court subject to execution, and says that it has been held that such averment is necessary, citing Blair v. Smith, 114 Ind. 114, 15 N.E. 817. In that case it is said in the syllabus that "an affidavit in attachment, which fails to show that the property sought to be reached is subject to execution, is not sufficient, and the proceedings may be quashed." This would seem to sustain appellant's position, but when we look to the body of the opinion, it is plain that the rule is not correctly stated. That was not a proceeding in attachment, under the statute cited, but a proceeding supplementary to execution. Upon the question there under discussion, Elliott, J., said: citing § 819 R. S. 1881, being § 831 Burns 1894. Continuing the court said: We can not believe that the Supreme Court, in the case just cited, intended to lay down as a general rule that, in attachment proceedings, it was essential to allege in the affidavit that property sought to be attached was subject to execution. The second and last objection urged to the affidavit is that the nature of the demand is not stated with sufficient certainty and definiteness to authorize the issuance of the writ, and because it affirmatively appears upon the face of the affidavit that there was no indebtedness from appellant to appellee existing. If appellant is right in this position, then the affidavit is insufficient, for, as we have seen, one of the essential elements of such an affidavit is to show "the nature of plaintiff's claim." This is one of the jurisdictional facts, and it must appear from the affidavit what the nature of the claim is, so that the court may determine if it is such a claim as will warrant the issuance of the writ. The nature of the claim, as described in the affidavit, is a judgment in favor of appellees against the "National Capsule Company and described in the complaint," and on "account of goods sold and delivered, also described in said complaint." We are inclined to the view that the affidavit is sufficiently definite in this respect. It shows the action is for the "recovery of money," and says that it is for a balance due on a judgment against the National Capsule Company, and for goods sold and delivered, "as described in the complaint", and it contains the further statement that the affiant "believes that the plaintiffs ought to recover thereon" a fixed amount.
In Theirman v. Vahle, 32 Ind. 400, the affidavit described the nature of the claim as "a balance due on account for goods sold and delivered," and the Supreme Court held it sufficient. Even if we wholly disregard that part of the affidavit relating to a judgment against the "National Capsule Company," still the "nature of the plaintiff's claim" is sufficiently described as being upon an account for goods sold and delivered. In Fremont, etc., Co. v. Fulton, 103 Ind. 393, 397, 3 N.E. 135, the affidavit described the nature of the plaintiff's claim as being for money due on three promissory notes, copies of which are filed with the complaint. It was held that the nature of the claim was sufficiently stated.
In the case before us, the record shows that the complaint and affidavit in attachment were filed at the same time. If there was any doubt as to the sufficiency of the affidavit when considered alone, such doubt is removed when we refer to the complaint, to which reference is made in the affidavit. While we do not find that the question has ever been directly decided in this State, yet there is good authority in the decisions of other courts of high standing for holding that we may look at the complaint in aid of the affidavit. Thus it was held in Nebraska that where the statement of the plaintiff's claim in the affidavit shows that it is one for which an attachment may issue, but is not so full as might be desired, reference may be had to the petition to ascertain the precise...
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