James Simpson, Pl'ff in Error, vs. Simpson Oldham, Def't in Error

James Simpson, Pl’ff in Error, vs. Simpson Oldham, Def’t in Error. Where an attachment is issued, under’the provisions of the Statute^, upon a proper affidavit made in the cause, such affidavit should be annexed to the attachment at the time the same is served. If not so. attached at the £imb of service, the service of the attachment is ' invalid and will he set'aside. But where in such a cáse, the Court before which the attachment was returnable, on the motion of the defendant quashed the writ, and gave judgment against the Plaintiff in the suit, for the defendants costs, Tiold that though the service of the process was had because the affidavit was not annexed, yet that the Court erred in '•dismissing th'e suit. Hdld also that th'e service off the process should have befen set aside, and the party left to procure a proper one tó be made; it appearing- that a sufficient affidavit had been made to justify the issuing of thle process, before the service was made. Error to'the Grant County Court. This suit was commenced in the County Court of Grant on a promisory note held by the plaintiff against the defendant below, by attachment under the Statute. A pro-, per affidavit and in accordance with the Statute, was made and filed, and thereupon', a writ of attachment was issued, which was served, property attached, and a due return made. On the return day of the Writ the plaintiff filed a declaration. On the 'day following 'the defendant filed a motion to quash the writ for .the follwing reasons : 1st. 'Because an affidavit was not attached to the writ when served, as required by the Statute'. 2d. Because there was a variance between the writ and the affidavit. 3d. Because the writ was insufficient. 4th. Because the; writ was not properly served. The first point was the only one insisted upon when the motion was heard; and upon the inspection of the papers the County Judge-sustained the motion and quashed the writ, and the plaintiff below excepted to thp decision of the Court. On the fourth day of the same Term the plaintiff moved the Court for a default against the defendant for the want of a plea, and asked that the Plaintiffs damages might be qssessed. The Court overruled the motion, and decided that the suit was already quashed, and that the plaintiff was not in Court and could take no further proceeding in the cause. To this decision the plaintiff excepted. The defendant below then made a motion for judgment for costs as against the plaintiff, fvhich was granted; and to this the plaintiff excepted. The plaintiff then made a jpotion for a rule that the defendant plead in the cause. The Court overruled the motion and the plaintiff excepted. Upon this state of the case the writ of Error was sued out returnable in tips Court. On the argument in this Court the counsel of the plaintiff in error made the following points: .1st. The, Court below erred in sustaining the motion of the defendant belo\y in quashing the writ. 2d. The, Court belo.w in erred overruling the motion of the plaintiff, for the defendant’s default for next pleading to the declaration. 3d. That the Court below erred in ordering the proceedings of the plaintiff to be quashed. And 4th. That the Court below erre.d in sustainli^g the de-iendant’s motion for judgment and awarding to him, costs. 5th. That the Court erred in overruling the plaintiffir potion for a rule that the defendant plead in the cause, J. II. Knoplton, for the Plaintiff in Error. JZastman 8f Mills, for Defendant in Error. ■On the part of the Plainjtiff in error it wps insisted that service of the attachment without the affidavit of the party, at whose suitjthe same was sued out, being annexed thereto. did not necessarily vitiate the service of the writ. That the return of the officer that had served the process implies that he had served it in the manner required by law. That it was a settled principle of law that the return of the officer could not be impeached. The Court must be governed by the return, and if the officer has returned falsely, the remedy for the party aggrieved is against him. That the inspection of the writ at a time when the affidavit was not annexed, pquld not furnish.such evidence tl|at it was not attached at the time of the service, as that the Court copld act npon his own ocular inspection, * in the settlement of an important fact. On the-part of the defendant in error it was insisted that the attachment was a nullity and had no legal operative effect, unless at the service of it the affidavit prescribed by the Statute was annexed. That both were necessary to constitute an operative process and that the atí-bense of either one nullified the procedure. That it was the duty of the plaintiff to cause the affidavit to be annexed; and not the duty of the officer who made the service. That if fioth papers were necessary to make up such a procéss as the law required, clearly neither one could be executed, in a legal sense, without being accompanied by the other. [MAJORITY — LarRabee, 1.] By the Court. LarRabee, 1. it appears that the Writ of attachment in this cause was properly issued; but the affidavit upon which it was issued was not annexed to it, prior to its being éxecuted. Fob this reason the writ was quashed at the Circuit, and judgment rendered against the plaintiff, for costs. We think this a valid objection to the service of the writ; but not a sufficient ground upon which the judgment of the Court can be sustained. The service should have been set aside, and the party left to procure a proper one; but he should not have been dismissed from Court. Every step required by the Statute, was taken by him, except the mere annexing the affidavit to the writ; and this could have been done at'any time before it was executed1. With this view, it is not nece&sary t<5 notice the other errors assigned. Judgment reversed.