Carothers vs. Click

Carothers vs. Click. Defective affidavit, though it might have been successfully objectad to by motion to quash the attachment, forms no ground for reversing the judgment. So abo with a defect in the form of a bond, and irregularity in the service of a writ- The writ of aclachment is not an independent proceeding but collateral and auxiliary to the ordinary suit. No special judgment is necessary against the property. The statute prescribes the consequences of the judgment. Chick brought his action of assumpsit and obtained a writ of attachment against the property of Carothers, and judgment was rendered generally against the defendant Carothers. From which the defendant appeals and assigns his errors. 1st. That the affidavit on which the attachment was issued is not in compliance with the statute. 2d. Because the paper purporting to be a bond by the attaching creditor is not a bond, not being sealed by the creditor and his security. 3d. Because the process of attachment is served not by the Sheriff but by one C. Lawson, Dept. Shff. M. Co. 4th. Because there is no judgment rendered against the property attached, but a general judgment against the party. Grant for the plff. in error. Lowe and Whicher for dft. Grant. The affidavit says that the plaintiff is “apprehensive” that Carothers will dispose of his property. The law, see Laws of Iowa, p. 52, says the affidavit must allege that the party *•verily believes.” I am by no means an advocate for technicalities, but courts have uniformly decided that attachment laws must be construed strictly. Now an apprehension is not a belief: it is rather a fear, perhaps you may say a faint belief. The . law requires a very, a positive belief. A plaintiff may apprehend that a debtor is *bout to dispose of his property because he is not a man of moral integrity.— To justify him in a very belief that he is about to do so, the debtor must do some act which shows a design of removing or disposing of his property. The paper purporting to be a bond is not a sealed instrument. So far as this action is concerned it is a mere blank paper. As to the third error: whenever process is served by an agent or deputy, it should be done in the name of the sheriff or principal, not in the name of the agent. A deputy sheriff has no right by law to serve process inhis own name. Paleij on ¿¡gency 152 Sr seq. The property being attached and not released the judgment should have been special against the particular property. Lowe and Whicheh for the dft. [MAJORITY — Mason, Ch. J.] By the Court Mason, Ch. J. For the purpose of reversing the judgment. below the plaintiff in error relies, 1st., upon the fact that the affidavit which formed the basis of the writ of attachment was wholly insufficient.— From an examination of that affidavit we are satisfied that it is so defective as to have been successfully objected to by motion to quash the writ of attachment. It forms no ground however for reversing the judgment. Neither would the second and third objections avail for this purpose, how valid soever they might be in an earlier stage of the proceedings. The last objection is equally unfounded, the proceedings in that respect having been strictly regular. The counsel for the plaintiff in error seem to have taken an incorrect view of the nature of the writ of attachment. It is not an independent proceeding but one that is wholly auxiliary. Where a debtor has absconded or is a non-resident of the Territory, so that the ordinary process eannot reach his person, or where he is about to dispose of his property with intent to defraud his creditors, this remedy is given for the purpose of securing his property or holding it within reach until the termination of the suit. It is then to be advertised and sold in the same manner as though it had been levied Upon by writ of fieri facias. It is therefore a separate proceeding collateral to the ordinary suit commenced by capias or summons, or (where the defendant cannot be found) by advertisement. In any of these cases the whole object of this writ is to secure and hold the property of the defendant or its equivalent to abide the event of the suit. If the plaintiff recovers, the property is by operation of law to be considered as having been levied upon by execution. The judgment is rendered, and the other result follows as a matter of course. No special judgment is ne-cesssary against the property for the statute has already prescribed the eonse-qu enees of the judgment. As soon as judgment is rendered, the efficacy of the writ of attachment is expended, and although the proceedings under it may have been irregular, the primary proceedings have not thereby been vitiated so as to be reached by writ of error. The judgment below is therefore affirmed.