First National Bank v. Van Doren

Albert, C. The plaintiff filed a petition stating five causes of action, the amount claimed aggregating $1,700, and the necessary affidavit for an order of attachment for the full amount claimed. The writ issued, and was duly levied on the property of the defendant. Afterward, for reasons not material to the present inquiry, four of the causes of action were dismissed. The defendant answered, and before trial filed a motion to dissolve the attachment, on the grounds, among others, that four of the causes of action on which the attachment was-issued had been dismissed, and that the levy was excessive. The motion was sustained, and from the order of the court dissolving the attachment, the plaintiff prosecutes error to this court. [143] The remedy of attachment is a harsh one. To prevent, so far as possible, its oppressive nse, it is hedged about with certain restrictions, chief among which is that the writ will not issue until after the action in which it is sought has been brought, and then only on the filing of an affidavit showing, among other tilings, the nature of the plaintiff’s claim, that it is just, and the amount the affiant believes the plaintiff is entitled to recover thereon. Sections 198, 199, Code of Civil Procedure. The writ limits the property to be seized thereunder to sufficient to satisfy the amount the affidavit shows the plaintiff is supposed to be entitled to recover, and the probable cost of the action, not exceeding $50. Section 201, Code of Civil Procedure. In the present case the action had been duly brought and the necessary affidavit for an attachment filed. As before stated, the petition stated five causes of action. The amount shown by the affidavit as that which affiant believed the plaintiff entitled to recover, was the aggregate amount claimed on the five causes of action, and the writ issued accordingly. But when four of the causes of action were dismissed, so far as the writ is concerned, it was the same as though they had never been brought; and such dismissal further operated as a retraction of that part of the affidavit based on such four causes of action. We have, then, a writ of attachment, authorizing the seizure of the defendant’s property for the satisfaction of five claims, when the action is for the enforcement of but one, which is not supported hy an affidavit showing the amount the affiant believes the plaintiff is entitled to recover, because, after the retraction, necessarily implied from the dismissal of the four causes of action, the affidavit does not show such amount. It is true it shows the amount the plaintiff seeks to recover, but the statute is specific that it must show the amount the affiant believes the plaintiff is entitled to recover. Section 199, supra. Had these omissions existed when the writ issued, it will not be claimed that it could be upheld. In our opinion, [144] they are no less fatal when arising subsequently. To hold otherwise would, in effect, permit the very abuses which the statute, making the affidavit' a prerequisite to the issuance of the writ, was designed to prevent. The motion to dissolve the attachment was rightly sustained, and we recommend its affirmance. Duffie and Ames, CO., concur. By the Court: For the reasons stated in the foregoing opinion, the order of the district court is Affirmed.