Van Dyke v. Besser

Walker, J. In this case the execution was proceeding against the property of the corporation, and another defendant filed an affidavit of illegality to arrest its progress. [1.] The Court below held that the affidavit must be made by, or at the instance of, the party against whom the execution was then proceeding. His decision was predicated upon section 3591 of the Code, which authorizes “ such person” whose property has been levied upon, or whose body has been arrested, to “ make oath in writing,” &c. In this case the affidavit was made by another party, and the Court [270] below decided, and we think properly, that there was m law no affidavit of illegality. [2.] It was then proposed to amend the affidavit by adding the word “agent” to the name of affiant. Section 3130 of the Code, authorizes, by leave of the Court, the amendment of affidavits of illegality, “ by the insertion of. new and independent ground,” eie. It was not proposed here to add a new or independant ground of illegality; the motion was, to change the litigant party from Yan Dyke to the corporation. In this proceeding the statute gives no such authority. The proposition amounted simply to filing an affidavit then, as the foundation of the proceeding instituted previously — nothing . more, nothing less. The Court held this could not be done, and we think held right. We do not deny the right of an agent to make an affidavit of illegality. We think sections 2185 and 3596 of the Code give such authority; but the motion was, to change the proceedings from the name of the individual into that of the corporation, and this, we hold, could not, in this sort of case, be done. Judgment affirmed.