Osborne v. Robbins

Martin Ce. J.: To authorize a Circuit Court Commissioner to issue a citation to a plaintiff in attachment requiring him to show cause why the attachment should not be dissolved, an application or petition must be presented to him by the defendant whose property has been attached; and the apjfiication should state the reasons therefor. As this is a special proceeding, the statute must be strictly complied with. The application should show that the defendant’s property was attached, and should set it forth: the first because the jurisdiction of ¿the officer is dependent upon it; the latter because no order respecting the property can be made unless the property be known, and because without these there would not be sufficient certainty as to the defendant’s property and right. In the present case, Robbins neither alleges a right to any property, nor sets it forth, unless by the general expression that some of his property was attached. This we think to be wholly insufficient; and, in view of the facts stipulated to exist, I think evasive. The reason for the-rule is very well illustrated by this case; for certainly [279] it would appear that most, and perhaps all of the property attached, belonged to others; and yet some trifle belonging to Robbins may have been taken, so that he could safely make the general statement which he did. We think the rule is just, and necessary to the security of parties, and persons interested in the property taken. Although the statute does not in express terms require the petition to be verified, yet, according to all analogies and rules of practice, we think this should be done, and that such was the intent of the Legislature. Certainly no mischief would follow such a requirement; while great mischief may often result from a want of it. As matter of practice we therefore hold that petitions or applications for the dissolution of attachments, must set forth the property taken, and aver the petitioner’s right to it, and that they must be verified by oath. The order of the Commissioner should be vacate'd. The other Justices concurred.