Third National Bank v. Garton

Gill, J. This is a suit by attachment, brought in the Pettis circuit court March 29, 1887; and at the May term following a change of venue was taken to the Johnson circuit court, where the cause was subsequently tried, and, judgment being rendered for plaintiff, defendants have appealed to this court. The matter at issue relates to the attachment proceedings in the cause. On March 29, 1887, when the action was commenced, the plaintiff filed with the clerk of the Pettis circuit court the following paper, intending the same, evidently, as an affidavit for attachment. We copy the paper here: “State of Missouri, “County of Pettis, ss. “Albert Parker, president of the Third National Bank of Sedalia, Missouri, being sworn for, and in behalf of, said bank, the plaintiff herein, on his oath says: That the plaintiff in the above entitled cause •has a just demand against the defendants' therein, which will become due on the eighteenth day of May, A. D. 1887, and that the amount which this affiant believes the plaintiff ought to recover, when the same becomes due, is two thousand dollars; and that this affiant has good reason to believe, and does believe,that the defendants have fraudulently conveyed and [118] assigned' their property and effects so as to hinder and delay their creditors, and that defendants are about fraudulently to convey and assign their property and effects so as to hinder and delay their creditors, and that defendants have fraudulently concealed, removed and disposed of their property and effects so as to hinder and delay their creditors, and are about fraudulently to conceal, remove and dispose of their property and effects so as to hinder and delay their creditors. “ Subscribed and sworn to before me this -th day of March, A. D. 1887. “Filed in the office of the clerk of the circuit court of Pettis county, Missouri, on the twenty-ninth day of March, 1887.” The transcript was filed in the Johnson county circuit court June 13, 1887, and, on the same day, Y. E. Shaw, an attorney for the plaintiff, and in the plaintiff’s behalf, made and filed an attachment affidavit (in lieu of the paper above quoted) and which, too, seems in proper form, signed and sworn to. On October 20, 1887, defendants filed their motion to quash the writ of attachment issued on the twenty-ninth day of March, 1887, for the following reasons: First. Because at the time of the issuance, of said writ of attachment there had been filed no affidavit setting forth the grounds of the attachment filed in this cause, as required by the statutes, and that said writ of attachment and attachment proceedings, by reason thereof, are null and void. Second. Because said attachment proceedings are null and void upon their face. In opposition to this motion, plaintiff submitted the affidavits of Mr. Shirk, plaintiff’s attorney, Albert Parker, president of the plaintiff corporation, and M. W. Brady, the deputy clerk of the Pettis circuit [119] court — all tending to show that said Parker was sworn to the paper, heretofore copied, at the institution of the suit, and that, by mistake or oversight, Parker neglected to affix his signature thereto, and the clerk, for the like reason, neglected to sign the jurat and affix-the court’s seal. And thereupon the said Parker did affix his signature to said paper as the affiant, and Brady, as deputy clerk, signed the jurat annexed thereto. Whereupon the court overruled the motion to quash the writ of attachment, to which ruling defendants saved exceptions and now assign such action of the circuit court as error. I. In calling for this extraordinary relief by attachment, whereby the power of the state is brought into action to seize on, and hold to, the assets of an alleged debtor until the creditor may, or may not, establish his claim, the law has imposed on him, seeking such aid in advance of a judgment in his favor, the giving a bond to secure defendant in case of wrongful attachment; and, further, to guard against indiscreet action as much as possible, the party asking the writ is required to file his .affidavit (or the affidavit of some one for him) as to the nature and justice of his claim, as well as to allege therein the ground, or grounds, of - attachment. It is, therefore, repeatedly, and very properly, held that this affidavit is an indispensable prerequisite to the issue of the writ of attachment. Without such affidavit, no court, or clerk thereof, has authority, or jurisdiction, .to' command, in the state’s name, the seizure of a defendant’s property. If, then, when the writ of attachment in this case was issued on March 29, 1887, there was not present, filed with the clerk, an affidavit for attachment, as the law requires, the issue thereof was wholly unwarranted, void and without jurisdiction, If, however, there was an affidavit, but defective, then it might be amended, and would support the writ. [120] We have no hesitancy in saying that the paper filed with the petition in this cause was not an affidavit, defective or otherwise. Webster defines an affidavit as “a sworn statement in writing ; a declaration or statement 'in writing signed and made upon oath before an authorized magistrate.” “An affidavit,” says Biggs, J., in Norman v. Horn, 36 Mo. App. 419, “is a written statement or declaration sworn to before some officer authorized by law to administer oaths, and signed at the end by the affiant.” In Hargadine v. VanHorn, supra, Napton, J., speaking for our supreme court, uses this language : “In the present case there was no affidavit at all, that is, the paper described and referred to by the clerk as the one upon which the writ of attachment issued was not signed by any one, and was, therefore, no affidavit.” It seems in the Hargadine case there was a jurat attached, signed by the officer administering the oath, and that Judges Sherwood and Norton dissented. But even they, in a dissenting opinion, made no claim, or remark even, suggesting that such a paper as we have here could be deemed an affidavit. In his dissenting opinion, Judge Sherwood says : “It is the official certificate which gives authenticity to the written oath, and not the signature of the affiant.” While,then, the entire court agreed to the necessity of the jurat, signed by the officer, three insisted on a like necessity of the affiant’s signature to the paper to make an affidavit justifying an attachment. In the case now under consideration the paper filed with the clerk as an affidavit for attachment is possessed of neither of the above requisites, It is signed by no affiant, nor authenticated by any officer authorized to administer oaths. It is nothing more, in effect, than a blank piece of paper wanting in every ingredient characterizing an affidavit. And, whatever may be the opinion of the minority in the Hargadine case, the majority of the court then- held that a paper [121] assuming to be an attachment affidavit, but unsigned by the affiant, is no affidavit, and this ruling has not, to our knowledge, ever been overruled. The conflict arising from the decision in Burnett v. McCluey, 92 Mo. 230, is not upon this point. The affidavit in controversy there is the same dealt with in Bray v. McCluey, 55 Mo. 128, and in Burnett v. McCluey, 78 Mo. 676, and was simply that the attachment defendants were not residents of the state and such affidavit did not purport on its face to be an affidavit for attachment. It was held by a divided court, in the disposition of the two former cases, that the paper was not an affidavit for attachment; while in the ninety-second the court holds that it is an affidavit for attachment, and, though defective, was in a collateral proceeding sufficient to support a judgment. In no case, in this state or elsewhere, do we find that a mere blank paper, unsigned by the affiant and authenticated by any one authorized to administer oaths, was taken to fill the place of an attachment affidavit. Being, then, a mere nullity, the paper filed in this cause gave no authority to the clerk to issue the writ of attachment. And, being a nullity, there was nothing by which to amend, as was attempted in this case. Owens v. Johns, 59 Mo. 89; Norman v. Horn, 36 Mo. App. 419; Hargadine v. VanHorn, 72 Mo. 370; and cases cited, supra. For the error, then, of the trial court in overruling the motion to quash the writ of attachment, the judgment is reversed and the cause remanded. All concur.