Slaughter v. Bevans

Miller, J. This suit was commenced by attachment in the district court for Iowa county, by John Bevans against William B. Slaughter. It was predicated on an affidavit of plaintiff, charging the defendant with fraudulently disposing of his property, so as to hinder and delay his creditors. The affidavit was made before a justice of the peace, the 10th day of September, 1839 (before the act in the Revised Statutes was amended), and the justice had neglected to indorse his satisfaction thereon, previous to the issuing of the writ. At the September term of said district court for the year 1840, the court allowed the said justice to appear in court and make the necessary indorsement of satisfaction on said affidavit, nunc pro tunc, the defendant objecting to the same. In pursuance of the tenth section of said act, additional writs to the writ issued to the sheriff of Iowa county, were issued on the same day to the sheriffs of Brown, Grant, Milwaukee, Dane, and Racine counties, and on which property was attached in said counties. It appeared by the motion filed to dismiss the writ and proceedings, that the defendant before and at the time of the commence [352] ment of the suit resided iu Dane county. The court overruled the motion to dismiss the writ and proceedings, and the cause proceeded to final judgment. The first error assigned for our consideration is as follows : The court erred in recording the first default of the defendant before proof of publication filed. The third section of the act concerning attachments, directs the clerk who issued the writ, upon the return of the writ, to make out an advertisement, which is to be published within thirty days. When these writs were returned, does not appear. The return of a writ is presumed to have been on the return day mentioned therein, unless the date of the return specially and positively appears, by indorsement on the writ itself; or entry of record. By the seventh section, the first default of the defendant is to be entered at the first or return term, which could not be done if the writ had not been returned in time for the publication, which may not have been issued in time, or if so, may be retained in the sheriff’s hands until the return day. The first default is so much a matter of form, that the entry thereof without previous publication, or proof of the same, is not error. The second error assigned is, that the court erred in permitting the affidavit to be amended. There was no amendment made of the affidavit, nor could there be any, for an affidavit of this kind is not amendable under any circumstances. The error assigned, we aré to infer from the argument, has reference to the permission to the justice to indorse his satisfaction. This court decided in the case of Mayhew v. Dudley, ante, 95, that the satisfaction of the officer is an indispensable pre-requisite, and that it can regularly appear in no other way than by his own indorsement of the fact; and that the clerk could not properly and legally issue the writ without such evidence of satisfaction. The same principle was reiterated in the case of Morrison v. Fake, ante, 133. And the legislature was so well satisfied of the propriety of this rule, that in [353] the act to amend the act concerning the writ of attachment, approved February 16, 1842, it was incorporated therein. From this it will appear that the indorsement of the justice should not have been allowed, and that the district court erred therein. The third error assigned is, that the court erred in rendering final judgment before two defaults of defendant had been entered. At the second term, the defendant appeared and filed a motion to dismiss, which at the April term, 1841, was overruled. At this term, the defendant filed his plea in abatement, which was decided against him, when the defendant filed his plea of the general issue, and a plea of a former recovery. At the September term following, the cause being at issue, it was tried by a jury. This state - ment is an answer to the error assigned. The defendant’s second default could not have been legally entered in the face of his plea. The fourth error assigned is: That the court erred in overruling the motion to dismiss the attachment. The motion was made at the September term, 1840, on the ground that the defendant was, at the time of the commencement of the suit, and continued to be, a resident of Dane county, and not of the county of Iowa. The process of attachment is, in the case of a non-resident, a means of compelling a party to appear through his property. It is not regulated by the general law respecting proceedings in courts, but it is regulated exclusively by the act upon the subject of attachments. That act does not confine the plaintiff in his suit, to the county where the defendant resides or is found. The original affidavit filed by the plaintiff sets forth that the defendant had property in the county of Iowa, which was enough to authorize the writ in that county, if the point were doubtful. In this the court did not err. The fifth error assigned is : “That the court erred in sustaining the plaintiff’s demurrer to the second plea of the defendant.” The said second plea was a plea of [354] former recovery, good on. its face, to which the plaintiff demurred generally. This court is unanimously of opinion that there was error in this decision; and as error is so apparent, it is not necessary to refer to authority upon the subject. This embraces all the errors material on the record. It is therefore considered and adjudged, that the judgment of the district court of Iowa county be reversed, with directions to said court to set aside the writ of attachment and all subsequent proceedings.