Eureka Steam Heat- ing Co

Eureka Steam Heat- ing Co Post Date: Sat, 2 Aug 2008 20:26:46 +0000
In Arkansas, Indiana, Maryland, and Michigan, by the plaintiff, or some person in his behalf In Iowa, Oregon, Washington, and Wisconsin, by the plaintiff, or any one in his behalf In Pennsylvania, by the plaintiff, or any other person for hi M In Missouti and New Mexico, by the plaintiff, or some person for hi M In California, Idaho, Nevada, and Utah, by or on behalf of the plaintiff " Attorney " The phrase " agent or attorney " includes an attorney at la W Austin v Latham, 19 La 88; Clark v Morse, 16 La 575, where counsel con- tended that it was confined to attor- neys in fa Ct But where no authority is shown by an agent for making the oath except that he was employed as an attorney at law in another state to bring suit to collect the debt, and the affidavit does not show that services out of that state were contemplated, the attach- ment will be dismisse d Wetmore v Daffin, 5 La An N 496 A resident attorney, however, em- ployed to bring the suit may make the necessary affidavit without special au- thority therefoRHardie v Colvin, 43 La An N 851 "Credible Perso N" It will be pre- sumed that the affiant is a credible person without stating the fact in the affidavit. Ruhl v Rogers, 29 W Va " Reputable" Equivalent to "Credibl e" The word "reputable" was held equivalent to " credible " in Dronillard v Whistler, 29 Ind 552 1 New York Code Civ Pro, 636, 639 North Carolina Code 1883, 349 North Dakota and South Dakota Dakota Code 1885, 199 South Carolina Code Civ Pro, 250 2 So held under the New York Code Civ Pro, 636, and the North Caro- lina Code Civ Pro, $ 349, which pro- vide that "the plaintiff * * * must show by affidavit," etc New York Mann v Carter, 71 Hun ( N Y) 72 ; Gribbon v Ganss (Supreme Ct), 18 N Y Supp 608 ; Marietta First Nat Bank, etc, v Bushwick Chemical Works, 119 N Y 645 ; Hamilton v Steck (Supreme Ct), 5 N Y Supp 831 ; Edick v Green, 38 Hun ( N Y) 202 ; James v Rich- ardson, 39 Hun ( N Y) 399 ; Doctor v Schnepp, 7 Civ Pro Rep ( N Y City Ct) 144; Mallary v Allen, 15 Abb N Ca S ( N Y City Ct) 338 North Carolina Bruff v Stern, Si N Car 183 ; Weaver v Roberts, 84 N Car 493 ; Sheldon v Kivett, no N Car 408 And under the South Carolina Code Civ Pro, 250, providing that "the writ may be issued whenever it shall appear by affidavit that," etc Guck- enheimer v Libbey ( S Car, 1894), 19 S E Rep 999 And in South Dakota, under Comp Laws, 4995, providing that "the warrant [of attachment] may issue upon affidavit stating," etc Harden- berg v Roberts ( S Dak, 1895), 61 N W Rep 1128 3 Pool v Webster, 3 Mete (Ky) 278; Mantz v Hendley, 2 He N M ( Va) 308 Contra, Flake v Day, 22 Ala 133, where a construction of the statute which would exclude an affi- davit by an agent was deemed to be inconsistent with the nature and de- sign of the law, especially in view of the general statutory declaration that the " attachment law * * * shall not be rigidly construe d" making of the affidavit by some person other than the plaintiff, as his agent or attorney, it is not generally necessary that it should declare that the affiant is the agent of the plaintiff, or expressly aver that he makes it in his behalf 1 1 Rutledge v Stribling, 26 111 App 353; Tessier v Crowley, 16 Neb 369; Reed v Bagley, 24 Neb 332; Simpson v McCarty, 78Cal175; Mandel v Peet, 18 Ark 236; Fremont Cultivator Co v Fulton, 103 Ind 393; Stringer v Dean, 61 Mich 196; Gilkeson v Knight, 71 Mo 403; Johnson v Gilke- son, 81 Mo 55; Franklin Sav InSt v M M Bank, I Mete (Ky) 159; Burnan v Romans, 2 Bush (Ky) 192; Winchester v Pierson (Cincinnati SupeRCt), 3 W L J 131; Sutliff v Bank of Chenango (Cuyahoga DiSt Ct), i W L M 214 The Authority of the Agent will be presumed in the absence of evidence to the contrar Y Baker -v Huddleston, 3 Baxt (Tenn) I In Wisconsin the authority of the affiant to make the affidavit for attach- ment is not put in issue by a traverse of his affidavit. Eureka Steam Heat- ing Co v Sloteman, 67 Wi S 118 In Louisiana it was held that on motion for dissolution the defendant has a right to demand proof of the agent's authorit Y Shewell v Stone, 12 Martin ( La) 386 Two Plaintiff S Under a statute providing that "the plaintiff or some one in his behalf," etc, shall make the affidavit, an affidavit by one of two plaintiffs, setting out that affiant be- lieves that " he" ought to recover, is not fatally defectiv e Fairbanks v Loring, 4 Ind App 451 But where the affiant deposed that he was one of the plaintiffs named in the annexed writ of attachment, which writ was not in fact attached, and the affidavit failed to further iden- tify the plaintiffs, it was held to be voi d Burnside v Davis, 65 Mich 74 Description of Affiant.

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1. - Effect of Failure Post Date: Sat, 2 Aug 2008 22:00:04 +0000
Effect of Failure to Give Required Affidavit.

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2. - Wilmerding v Cunningham, 65 How Post Date: Sat, 2 Aug 2008 21:41:53 +0000
The statutory re- quirement of the affidavit is a jurisdictional one, and consequently its omission will render all subsequent proceedings void, in the absence of any saving provision in the statute to the contrar Y In New York, if there is sufficient substance in the affidavit to give the court of first instance jurisdiction to award the attachment, its exercise of discretion therein is not reviewable by the Court of Appeal S National Park Bank -v Whitmore, 104 N Y 297 See also Buell v Van Camp, 119 N Y 1 60 Validity of Judgment. It has been held, however, that irregularities in an attachment are not fatal to the judgment, and so do not affect the validity of an execution thereon which is fair on its fac e Skinner v Moore, 2 Dev B (N Car) 138 See also Nesqually Mill Co v Taylor, i Wash Ter i; Farmer v Ballard, 3 Stew (Ala) 326; Dow v Whitman, 36 Ala 604; Norcross v Nunan, 61Cal641; Bryant v Hendee, 40 Mich 543; Bellinger v Gallagher, 144 Pa St 205; Moore v Mauck, 79111391; Rus- sell v Work, 35 N J L 316 But the authorities on this point are conflict- 3 When to be Mad e The affidavit alleging the facts or grounds on which, under the statute, the attachment is authorized should be made prior to or contemporaneous with the issue of the writ 1 in g Willetts v Ridgway, 9 Ind 367; Hargardine v Van Horn, 72 Mo 370; Nachtrieb v Stonet, i Colo424 the last two cases cited being especially usefu L See also Reitz v People, 77 111 518; Alexander v Haden, 2 Mo 228 Who may Obje Ct An attachment is- suing without the affidavit required by law will be abated on the plea of the defendant, Wright v Smith, 66 Ala 545; and of the defendant alone, Jones v Pope, 6 Ala 154 In the ab- sence of fraud or collusion no objec- tion on account of irregularities can be raised by a stranger to the suit, Scrivener v Dietz, 68Cali; Harvey v Foster, 64Cal296; Leppel v Beck (Colo App, 1892), 31 Pac Rep 185; Moresi v Swift, 15 Nev 215; Russell v Work, 35 N J L 316; Steinam v Gahwiler (Tex Civ App, 1895), 30 S W Rep 472 compare Everett v Carleton, 85 Me 397; though he be a creditor of the defendant, and issues and levies an attachment on the same property subsequently, Kirkman v Patton, 19 Ala 32; Ex p Perry Stove Co ( S Car, 1895), 20 S e Rep 980; Fridenberg v Pierson, 18Cal152, an excellent cas e Part of the Recor d The affidavit is a part of the recor d Staples v Fair- child, 3 N Y 41; Shivers v Wilson, 5Har J (Md) 130; Ford v Wood- ward, 2 Smed M (Mis S) 260; Maples v Tunis, n Humph (Tenn) 108; Conrad v M'Gee, 9 Yerg (Tenn) 428; Watt v Carnes, 4 Heis K (Tenn) 532; Goss v Boulder County, 4 Colo468 If no affidavit appears in the record it has been held that no evi- dence, except perhaps in the case of loss or destruction, is admissible to prove that one was mad e Bond v Patterson, I Blackf (Ind) 34 But the absence of the affidavit from the record cannot be objected to in a col- lateral proceedin g Biggs v Blue, 5 McLean (U S) 148; Sloan S Mitchell, 84 Mo 546 Eeferences to Other Affidavits on file in the office of the clerk, where no ex- tracts from them are given, will not aid an affidavit otherwise insufficient. Wilmerding v Cunningham, 65 How Pr ( N Y Supreme Ct) 344 See also Moore v Richardson, 3 How Pr , N S ( N Y Supreme Ct) 238 An Unwritten Affidavit for an attach- ment is unknown to the la W Wi Rdley v Bradway, 77 N Car 333 And where the statute required the peti- tion to be supported " by affidavit or testimony," it was held that mere oral testimony could not be heard or con- sidere d Loeb v Smith, 78 Ga 504 Petition as Affidavit.

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3. - In an action commenced Post Date: Sat, 2 Aug 2008 21:22:35 +0000
A petition sworn to and containing the allega- tions required in an affidavit has been held sufficient without the filing of a separate affidavit. Scott v Doneghy, 17B Mo N (Ky)32i; Shaffer v Sund- wall, 33 Iowa 579; Loeb v Smith, 78 Ga 504; Miller v Chandler, 29 La An N 88; Watts v Harding, 5 Tex 386; Whitemore v Wilson, I Tex Un Rep Ca S 218; Gray v Sheridan Electric Light Co, 5 Month L Bul L ( N Y) 22 Affidavit as a Petitio N But an affi- davit cannot perform the office of a petitio N Garrett v Taylor ( Ga, 1892), 14 S E Rep 869 One Affidavit Sufficient. In an action commenced by attachment, one affi- davit stating all the facts necessary to procure a writ of attachment and an order of publication will be sufficient for both purpose S Burn ett v Mc- Cluey, 92 Mo 230 And the same af- fidavit may be read in support of ap- plications by separate plaintiffs for attachments against the same ab- sconding debtor, Hallock v Van Camp (Supreme Ct), 8 N Y Supp 588; or in support of a second attach- ment by the same plaintiff, Mojar- rietta v Saenz, So N Y 551; Acker v Jackson, 3 How Pr, N S ( N Y Su- preme Ct) 160 Lost Affidavit.

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4. - Foster v Illinski, 3 111 Post Date: Sat, 2 Aug 2008 21:10:25 +0000
Where the affidavit had been lost, it was held that one might be substituted on the applica- tion of the sureties to the Attachment Ex p Simpson, 7 Ala 842 See also Bond v Patterson, i Blackf (Ind) 34 1 Wright v Smith, 66 Ala 545; Watts v Womack, 44 Ala 605; Simpson v Knight, 12 Fla 144 See also Gould v Bryan, 3 Bosw ( N Y) 627 And where the writ was issued 4 Before Whom to be Mad e An affidavit for the issue of a writ of attachment may be made before any officer having authority ten days before the affidavit was made, the proceedings were held voi d Buckley v Lowry, 2 Mich 418 In Stevens v Middleton, 26 Hun ( N Y) 470, it was held not necessary that the affidavit should state that the action had been actually commenced, or that the summons had been issue d There is no objection to the prepa- ration of all the papers requisite to the writ of attachment before or at the same time the complaint is prepared, provided the undertaking and affidavit be not filed in advance of the com- plaint, and the writ be not issued before the summons and service of a copy of the complaint. Wheeler v Farmer, 38Cal203 Laches in Issuing writ But in many cases attachments have been issued on affidavits made some time before the issue of the writ Thus in Adams v Lockwood, 30 Ka N 373, where an affidavit was sworn to eighteen days before it was filed or the action commenced, the court held that the intervening time was not of itself so great as necessarily to com- pel the discharge of the attachment, where the charge in the affidavit was of some fact which, having occurred, was not subject to change, as, for instance, an allegation that the debt was fraudulently contracte d And in Graham v Bradbury, 7 Mo 281, a lapse of several days between the date of the affidavit and the issue of the writ was not held sufficient to sustain a motion to quas H See also O'Neil v New York, etc, Mi N Co, 3 Nev 141; Campbell v Wilson, 6 Tex 379; Wright v Ragland, 18 Tex 289; Lewis v Stewart, 62 Tex 352 But in general the affidavit should be made within a reasonable time of the issue of the writ; and what is a reasonable time depends on the circumstances of the case, less time being allowed where the affiant lives within than where he lives out- side the jurisdiction of the court. Foster v Illinski, 3 111 App 345 Such delay between the several steps of the proceeding as fairly to induce the presumption that the proc- ess of the court is abused, or used oppressively, or that the cause of the attachment may not be existent when the writ is sued out, may be ground for setting aside the whole proceedin g Unless, however, there are these strong features, the pro- priety of the proceedings ought to be tested by plea in abatement, on trial of which the question is whether the attachment was wrongfully sued out at the time of its issuance; and, if the condition of things was changed be- tween the date of the affidavit and the issuance of the attachment, the de- fendant could, under the issue joined upon his plea in abatement, avail himself of the altered condition of things in reference to the ground of attachment as set forth in the affidavit.

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5. - Goldsoll v Votaw, i Tex Post Date: Sat, 2 Aug 2008 20:55:39 +0000
McClanahan v Brack, 46 Mis S 246 Michiga N Where the statute re- quired the affidavit to show that the facts sworn to existed at the time of the application for the writ, an affi- davit was held void which was sworn to on a day previous to the issuing of the writ Drew v Dequindre, 2 Doug L (Mich) 93; Wilson v Arnold, 5 Mich 98; Fessenden v Hill, 6 Mich 242; and it was held to make no difference that the party or his agent resided at a distance from the office of the clerk issuing the writ, and that the affidavit was transmitted to the clerk as soon as practicable by the usual course of mail, Wilson v Arnold, 5 Mich 98 But it is now provided by Howell's An N StatMich 1882 that the affidavit shall not be deemed insufficient by reason of the intervention of a day between the date of the jurat and the issuing of the writ, and when the person making the affidavit resides in any other county in this state than that in which the writ of attachment is to issue, one day's time for every thirty miles of travel, by the usual post route from the residence of such person to the place from which the writ shall issue, shall be allowed be- tween the date of such jurat and the issuing of the writ Construing this statute, it has been held that the time does not begin to run until the expira- tion of the day on which the affidavit is executed, and consequently the writ may issue on the day after the intervening da Y Horton v Monroe, 98 Mich 195 to take and certify affidavits generall Y 1 See article AFFIDAVITS, Vo L I, p 328 5 The Affiant statutory Provision S In most of the states the statutes regulating attachments provide that the affidavit may be made by the plaintiff, or by some one, as his attorney or agent, for hi M 2 Thus where an affidavit was sworn to before a person not authorized to administer oaths, it was held that the whole proceedings were void for want of jurisdictio N Greenvault v Farm- er's, etc, Bank, 2 Doug L (Mich) 498 And in Evesson v Selby, 32 Md 340, it was held that the court before which the affidavit was made must be a court of record, and must be proved to be so by the certificate of the clerk to that effect, under his official seal, the absence of which would be fatal upon a motion to quas H See also O'Farrell v Heard, 22 Min N 189, where a pretended warrant of attach- ment issued by a court commissioner, but which was neither signed nor sealed by the clerk of the court, was held voi d Notarial Sea L But in Illinois it has been held that an affidavit made before a notary public in the county in which the suit is brought need not be under the notarial seal, signature alone be- ing sufficient, Stout v Slattery, 12 111 162; Rowley v Berrian, 12 111 198; Dyer v Flint, 21 111 80; but when the affidavit is to be used in another county, it should be sealed, Stout v Slattery, 12 111 162 Clerk of Court. In Texas clerks of the district court are not authorized by law to administer oaths generally, and an affidavit for attachment made be- fore the district court clerk of one county in an attachment instituted in the district court of another county is insufficient. Goldsoll v Votaw, i Tex Un Rep Ca S 90 Need not be before Officer Issuing writ The affidavit need not necessarily be taken before the officer issuing the writ Wright v Smith, 66 Ala 545 In Another Stat e Thus it has been held that an affidavit for an attachment in aid of a summons, sworn to in another state, might be made before a notary public authorized to admin- ister oaths, Mineral Point RCo v Keep, 22 111 9; or a judge of a court of common pleas, Hays v Bouthalier, I Mo 346; or a justice of the peace, Poseyi'.

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6. - Where the statute provides for Post Date: Sat, 2 Aug 2008 20:40:09 +0000
Buckner, 3 Mo 604, where it was held that the official character of the justice sufficiently appeared by the certificate of the clerk of the county court where he resided that he was then an acting justice, duly commis- sioned, etc, and by the certificate of two of the commissioners of the same county to the official character of the cler K New York Cod e Under 844 of the New York Code Civ Pro, which provides for the taking of affidavits outside the state to be used within the state, any officer authorized by the laws of New York to take and certify the acknowledgment and proof of deeds outside the state to be recorded within the state, is authorized to take an affidavit outside the state to be used in an action in the stat e Ross v Wigg, 6 Civ Pro Rep ( N Y Su- preme Ct) 263, the same case also holding that where the affidavit taken outside the state was accompanied by a certificate of the clerk of a court of record within the county in which it was taken, that the signature of the judge who took it was to him " well known to be the autograph signature of such judge," there was a substan- tial compliance with the statute re- quiring a certificate of the clerk that " he is well acquainted with the hand- writing of such judge, and verily believes his signature genuin e" Disqualification of OfficeRBut a clerk of a court cannot make affidavit in an attachment suit before his own deput Y Owens v Johns, 59 Mo 89 And a notary public who is an attor- ney at law cannot qualify a party to an affidavit for an attachment, and take the bond and issue the attach- ment, in a case where he is employe d Wilkowski v Halle, 37 Ga 678 2 In Alabama, Arizona, District of Columbia, Florida, Georgia, Illinois, Kansas, Louisiana, Minnesota, Mon- tana, Mississippi, Nebraska, Ohio, Rhode Island, Tennessee, Texas, Vir- ginia, and Wyoming the affidavit may In a few of the states the statutes do not designate the person by whom the affidavit shall be made; 1 and in such case it is usually held that it may be made by an agent of the plaintiff 2 Where, however, the statute expressly requires the affidavit of the plain- tiff, no other affidavit than the plaintiff's will authorize the attach- ment. 3 Agent or Other Person as Affiant. Where the statute provides for the be made by the "plaintiff, his agent or attorne Y" See citations under sec- tion I I, A Statutory Requirement, supr A In Colorado, by any creditor or cred- ible person for hi M In Delaware and West Virginia, by the plaintiff or some credible perso N In New Jersey, by the creditor, or by his agent or attorney if he be ab- sent, or a nonresident.

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7. - Eureka Steam Heat- ing Co Post Date: Sat, 2 Aug 2008 20:26:46 +0000
In Arkansas, Indiana, Maryland, and Michigan, by the plaintiff, or some person in his behalf In Iowa, Oregon, Washington, and Wisconsin, by the plaintiff, or any one in his behalf In Pennsylvania, by the plaintiff, or any other person for hi M In Missouti and New Mexico, by the plaintiff, or some person for hi M In California, Idaho, Nevada, and Utah, by or on behalf of the plaintiff " Attorney " The phrase " agent or attorney " includes an attorney at la W Austin v Latham, 19 La 88; Clark v Morse, 16 La 575, where counsel con- tended that it was confined to attor- neys in fa Ct But where no authority is shown by an agent for making the oath except that he was employed as an attorney at law in another state to bring suit to collect the debt, and the affidavit does not show that services out of that state were contemplated, the attach- ment will be dismisse d Wetmore v Daffin, 5 La An N 496 A resident attorney, however, em- ployed to bring the suit may make the necessary affidavit without special au- thority therefoRHardie v Colvin, 43 La An N 851 "Credible Perso N" It will be pre- sumed that the affiant is a credible person without stating the fact in the affidavit. Ruhl v Rogers, 29 W Va " Reputable" Equivalent to "Credibl e" The word "reputable" was held equivalent to " credible " in Dronillard v Whistler, 29 Ind 552 1 New York Code Civ Pro, 636, 639 North Carolina Code 1883, 349 North Dakota and South Dakota Dakota Code 1885, 199 South Carolina Code Civ Pro, 250 2 So held under the New York Code Civ Pro, 636, and the North Caro- lina Code Civ Pro, $ 349, which pro- vide that "the plaintiff * * * must show by affidavit," etc New York Mann v Carter, 71 Hun ( N Y) 72 ; Gribbon v Ganss (Supreme Ct), 18 N Y Supp 608 ; Marietta First Nat Bank, etc, v Bushwick Chemical Works, 119 N Y 645 ; Hamilton v Steck (Supreme Ct), 5 N Y Supp 831 ; Edick v Green, 38 Hun ( N Y) 202 ; James v Rich- ardson, 39 Hun ( N Y) 399 ; Doctor v Schnepp, 7 Civ Pro Rep ( N Y City Ct) 144; Mallary v Allen, 15 Abb N Ca S ( N Y City Ct) 338 North Carolina Bruff v Stern, Si N Car 183 ; Weaver v Roberts, 84 N Car 493 ; Sheldon v Kivett, no N Car 408 And under the South Carolina Code Civ Pro, 250, providing that "the writ may be issued whenever it shall appear by affidavit that," etc Guck- enheimer v Libbey ( S Car, 1894), 19 S E Rep 999 And in South Dakota, under Comp Laws, 4995, providing that "the warrant [of attachment] may issue upon affidavit stating," etc Harden- berg v Roberts ( S Dak, 1895), 61 N W Rep 1128 3 Pool v Webster, 3 Mete (Ky) 278; Mantz v Hendley, 2 He N M ( Va) 308 Contra, Flake v Day, 22 Ala 133, where a construction of the statute which would exclude an affi- davit by an agent was deemed to be inconsistent with the nature and de- sign of the law, especially in view of the general statutory declaration that the " attachment law * * * shall not be rigidly construe d" making of the affidavit by some person other than the plaintiff, as his agent or attorney, it is not generally necessary that it should declare that the affiant is the agent of the plaintiff, or expressly aver that he makes it in his behalf 1 1 Rutledge v Stribling, 26 111 App 353; Tessier v Crowley, 16 Neb 369; Reed v Bagley, 24 Neb 332; Simpson v McCarty, 78Cal175; Mandel v Peet, 18 Ark 236; Fremont Cultivator Co v Fulton, 103 Ind 393; Stringer v Dean, 61 Mich 196; Gilkeson v Knight, 71 Mo 403; Johnson v Gilke- son, 81 Mo 55; Franklin Sav InSt v M M Bank, I Mete (Ky) 159; Burnan v Romans, 2 Bush (Ky) 192; Winchester v Pierson (Cincinnati SupeRCt), 3 W L J 131; Sutliff v Bank of Chenango (Cuyahoga DiSt Ct), i W L M 214 The Authority of the Agent will be presumed in the absence of evidence to the contrar Y Baker -v Huddleston, 3 Baxt (Tenn) I In Wisconsin the authority of the affiant to make the affidavit for attach- ment is not put in issue by a traverse of his affidavit. Eureka Steam Heat- ing Co v Sloteman, 67 Wi S 118 In Louisiana it was held that on motion for dissolution the defendant has a right to demand proof of the agent's authorit Y Shewell v Stone, 12 Martin ( La) 386 Two Plaintiff S Under a statute providing that "the plaintiff or some one in his behalf," etc, shall make the affidavit, an affidavit by one of two plaintiffs, setting out that affiant be- lieves that " he" ought to recover, is not fatally defectiv e Fairbanks v Loring, 4 Ind App 451 But where the affiant deposed that he was one of the plaintiffs named in the annexed writ of attachment, which writ was not in fact attached, and the affidavit failed to further iden- tify the plaintiffs, it was held to be voi d Burnside v Davis, 65 Mich 74 Description of Affiant.

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8. - 2 1 Robinson v Hesser Post Date: Sat, 2 Aug 2008 20:11:16 +0000
The affiant should be described in the affidavit as agent or attorne Y Willis v Lyman, 22 Tex 268; Anderson v Sutton, 2 Duv (Ky) 488; Manley v Headley, 10 Ka N 88 See also Baker v Hunt, i Martin ( La) 194 Contra, Winchester v Pierson (Cincinnati SupeRCt), 3 W L J 131, though a defect in this particular is generally amendabl e Cassidy v Fleak, 20 Ka N 54; Tracy v Gunn, 29 Ka N 509 If described as agent of the plaintiff in the affidavit, the affiant need not swear that he is the agent or attorney of the plaintiff, White v Stanley, 29 Ohio St 423; nor that he makes it in behalf of the plaintiff, Smith v Vic- torin, 54 Min N 338 See also Murray v Cone, 8 Port (Ala) 250 In Wisconsin it has been held that the affidavit for an attachment must show that the affiant was the agent, attorney, etc, of the plaintiff, or that the affiant made the affidavit on behalf of the plaintiff , or it is defectiv e Wiley v Aultman, 53 Wi S 560 Thus where the affidavit was " J K on behalf of I S , being duly sworn," etc , it was held defective because the affiant had not sworn that he made the affidavit on behalf of the plaintiff Miller v Chicago, 'etc, RCo, 58 Wi S 310 And in Michigan it is essential that the affidavit shall appear upon its face to have been made either by the plain- tiff or by some person in his behalf; and an affidavit made by John Bor- land, SR, averring an indebtedness to John Borland, Jr, in whose name the writ was issued, was held fatally de- fective for want of a statement that it was made by the affiant as agent or attorney for the plaintiff or in his be- half Borland v Kingsbury, 65 Mich 59 But where the affiant makes oath that he is the agent of the plaintiff, naming him, the affidavit sufficiently avers such agenc Y Adams v Kel- logg, 63 Mich 105 The Affidavit is not a Pleading within the meaning of a code provision re- quiring an agent or attorney in certain cases to state in his affidavit verifying a pleading " why such verification is not made by the party himself" Johnson v Laughlin, 7 Ka N 359 Affidavit on Behalf of Corporatio N An affidavit is not void, although pur- porting in its opening clause to be that of a corporation plaintiff, where it sufficiently appears from the whole affidavit that it is the oath of the agent of the corporation, and that such agent in fact made oath thereto and signed it. Moline v Curtis ( Neb, 1893), 57 N W Rep 161 And where the affidavit exactly follows a form prescribed by the statute, it is not open to attack for omitting to disclose who the plaintiff is or that the affiant is the agent of the plaintiff 1 6 Form of the Affidavit A IN GENERAL Language of statut e It is generally advisable to follow the exact language of the statute in framing the affidavit, since that is always sufficient. 2 1 Robinson v Hesser, 4 N Mex 144, practically overruling Bennett v Zabriski, 2 N Mex 7 2 Alabama Harris^.

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9. - A Proviso in the Statute Post Date: Sat, 2 Aug 2008 19:59:18 +0000
Clapp, Minor (Ala) 328; Stowe v Sewall, 3 Stew P (Ala) 67; Peters v Bower, Minor (Ala) 69 California Wheeler v Farmer, 38 Ca L 203 Florida West v Woolfolk, 21 Fla 189 Georgia Harrill v Humphries, 26 Ga 514 Indiana Sweeny v Cochran, 19 Ind 206 Iowa Branch of State Bank v White, 12 Iowa 141; Sherrill v Fay, 14 Iowa 292 Kansa S Reyburn v Brackett, 2 Ka N 227 KentucKy Hardy v Trabue, 4 Bush (Ky) 644 Louisiana Clements v Cassily, 2 La An N 567; De Poret v Gusman, 30 La An N 930; Belden v Read, 27 La An N 103 Minnesota Curtis v Moore, 3 Min N 29; Kenney z/Goergen, 36 Min N 190; Bigelow v Chatterton (District of Minnesota), 51 Fed Rep ( C C A) 614 Missour I Curtis v Settle, 7 Mo 452 Montana Cope v Upper Missouri Mi N, etc, Co, i Mont 53 New MexiCo Robinson v Hesser, 4 N Mex 144 New York In re Marty, 2 Barb ( N Y)436 Ofno Coston v Paige, 9 Ohio St 397; Emmitt v Yeigh, 12 Ohio St Orego N Crawford v Roberts, 8 Oregon 324 Pennsylvania Sharpless v Zeigler, 92 Pa St 467; Hall v Kintz, 2 Pa DiSt Rep 615 Tennessee Lester v Cummings, 8 Humph (Tenn) 385 Texa S Barber v Holder, 24 Tex 225; Wright v Ragland, 18 Tex 289; Whitemore v Wilson, i Tex Un Rep Ca S 218; Goldsoll v Votaw, i Tex Un Rep Ca S 90 West VirginiaRuhl v Rogers, 29 W Va 779 Wisconsi N Klenk v Schwahn, 19 Wi S in; Anderson v Wehe, 58 Wi S 615; Mairet v Marriner, 34 Wi S 582; Oliver v Town, 28 Wi S 328 Not Coextensive with Whole Attach- ment Statut e Where the affidavit con- forms to the statute prescribing what it shall state, it need not show the existence of conditions required by other provisions in the attachment la W Thus in Mastin v First Nat Bank, 65 Mo 16, the court said: "While it is true that section 2 of the Attachment Act prohibits the is- suance of an attachment based on a demand not yet due, where the de- fendant is a nonresident, yet there is no statutory requirement that the affi- davit shall allege the maturity of the demand ; the petition in this case shows the demand was due, and this is suffi- cient." See also Pope v Frank, 81 N CaR180; Shadduck v Marsh, 21 N J L 434- . A Proviso in the Statute was held to be a matter of defense not necessary to be mentioned in the affidavit.

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10. - A statute re- quiring Post Date: Sat, 2 Aug 2008 19:46:51 +0000
Frantz v Wendel, 28 Ind 391 Probative Fact S In Nebraska, Cali- fornia, and Oregon an affidavit setting forth the existence of the grounds of attachment in the words of the statute is sufficient to support the writ, even though unaccompanied by any facts showing them to be tru e Hilton v Ross, 9 Neb 406; Ellison v Tallon, 2 Neb 15; Tallon v Ellison, 3 Neb 63; Steele v Dodd, 14 Neb 496; Peru Plow, etc, Co v Benedict, 24 Neb 345; Wheeler S Farmer, 38Cal203; Crawford v Roberts, 8 Oregon 324 But in the last two cases cited the practice in those states was distin- guished from that in New York by the circumstance that in the two former states the issuance of the writ is sim- ply a ministerial dut Y Where, how- ever, the probative facts are required Substantial Complianc e This, however, is not absolutely necessary, for if the words of the affidavit are in substantial compliance with the terms of the statute, that will be sufficient. But where lan- guage other than that of the statute is used in the affidavit, it should be clearly and substantially equivalent to that used by the statut e 1 to be alleged, it is not sufficient for the affidavit to state that the defendant has done the various acts which authorize an attachment; the facts and circum- stances must be state d Smith v Fogarty, 6 Civ Pro Rep ( N Y City Ct) 366 See also Dunlevy v Schartz, 17 Ohio St 640; Garner v White, 23 Ohio St 192; Keigher v, McCor- mick, ii Min N 545 1 Alabama Ware v Todd, I Ala 199; Graham v Ruff, 8 Ala 171 Arkansa S Kinney v Heald, 17 Ark 397; Hughes v Martin, i Ark 386; Heard v Lowry, 5 Ark 524; Cheadle v Riddle, 6 Ark 480 Florida Tanner, etc, Engine Co v Hall, 22 Fla 391 Georgia Kennon v Evans, 36 Ga 89; Irvin v Howard, 37 Ga 18; Chambers v Sloan, 19 Ga 84 Illinoi S Lawver v Langhans, 85 111 138; Hay wood v McCrory, 33 111 459 Indiana Fremont Cultivator Co v Fulton, 103 Ind 393; Cooper v Reeves, 13 Ind 53; Theirman v Vahle, 32 Ind 400 Iowa Wiltse v Stearns, 13 Iowa 282; Drake v Hager, 10 Iowa 556 Kansa S Hodson v Tootle, 28 Ka N KentucKy Taylor v Smith, 17B Mo N (Ky) 536; Worthington v Gary, i Mete (Ky) 470; Allen v Brown, 4 Mete (Ky) 342; Bailey v Beadles, 7 Bush (Ky) 383; Clark v Arnold, 9 Dana (Ky) 305 Louisiana Sawyer S Arnold, I La An N 315 Marylan d Franklin v Claflin, 49 Md 24 Michiga N Drew v Dequindre, 2 Doug L (Mich) 93 Mississipp I Alston v Newcomer, 42 Mis S 186 New Jerse Y Croxall v Hutchings, 12 N J L 84 New York Van Kirk v Wilds, n Barb ( N Y) 520; Barton v Saalfeld, i How Pr, N S ( N Y) 276; Alford v Cobb, 28 Hun ( N Y) 22; Lamkin v Douglass, 27 Hun ( N Y) 517; Wallace v Castle, 68 N Y 370; Hag- gart v Morgan, 5 N Y 422; Frost v Bisbin, 19 Wen d ( N Y) n; Richter v Wise, 6 Thom P C ( N Y) 70; Manton v Poole, 67 Barb ( N Y) 330 Tennessee Foster v Hall, 4 Humph (Tenn) 346 Ver Mont Boardman v Bickford, 2 Ai K ( Vt) 345- West VirginiaAltmeyer v Caul- field, 37 W Va 847; Cosner v Smith, 36 W Va 788 Surplusage Surplusage in the affi- davit will not vitiate it, Farley v Farior, 6 La An N 725; Spear v King, 6 Smed M (Mis S) 276; Ed- wards v Flatboat Blacksmith, 33 Mis S 190; Auter v Steamboat J Jacobs, 34 Mis S 269; Van Kirk v Wilds, ii Barb ( N Y) 520; McMahon v Boardman, 29 Tex 170; unless it substantially affects the conformity of the affidavit to the statutory require- ment, Emmitt v Yeigh, 12 Ohio St 335; Streissguth v Reigelman, 75 Wi S 212 That the caption of an affidavit con- tains the names of defend-ants other than those connected with the claim out of which the demand arose is not sufficient ground for setting aside the attachment; Cunningham v Von Pus- tan (Supreme Ct), 31 N Y St Rep 255, 9 N Y Supp 255 Immaterial Omission S Where the statute provided for the issuance of attachments, upon an affidavit stating that the defendant " has disposed of his property in whole or in part with intent to defraud," etc, it was held that the omission of the words "in whole or in part," in an affidavit otherwise complying with the statute, was an immaterial defe Ct Steinam v Gahwiler (Tex Civ App , 1895), 30 S W Rep 472 Equivalent Averment. A statute re- quiring the affiant to make oath that "he knows or is credibly informed and verily believes " that defend- ant is a nonresident, is satisfied by an averment that the " defendant, not be- ing a citizen of the state * * * and not residing therein, is indebted," b FORMAL DEFECTS Their Effe Ct (See also article AFFIDA- VITS, Vo L L, p 311) Mere formal defects are commonly disre- garded by the court.

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