Frink v. Flanagan

The Opinion of the Court was delivered by Caton, J. This was an action of replevin, commenced in the Peoria Circuit Court, where the issues were made up, and the venué changed to the county of Stark. There the defendant moved the Court to dismiss the suit for the want of a sufficient affidavit, which was resisted by the plaintiff, who applied for leave to amend his affidavit. The Court overruled the motion for leave to amend the affidavit, and sustained the motion to dismiss the suit: These decisions are assigned for error. The affidavit was made by Curran Walker, the agent of the plaintiff, who states “that he has good reason to believe, and does verily believe that John Frink is the owner and lawfully entitled to the possession of the following articles of property,” &c. We have no doubt, nor was any question seriously made on the argument, that this affidavit was insufficient. The third section of the replevin law of 1839 requires, that before any writ of replevin shall issue, an affidavit shall be made by the plaintiff, or some one for him, “that the plaintiff in such action is the owner of the property,” &c. This law requires that the affidavit, when made by the agent, shall be as positive as when made by the plaintiff himself, and thus far repeals the sixtji section of the Act of 1827, under which this affidavit would have been sufficient. " Should the plaintiff have been allowed to have amended his affidavit, is. a question to which we have been able to find -no case, except Cutler v. Rathbone, 1 Hill, 206, which was a case, in all its features, precisely like this, except that it does not appear but that the motion to dismiss was made at the earliest appearance of the defendant. There the Court held, under a statute similar to ours, that an affidavit like this was insufficient, but that it might be amended, and this without any statutory provision on the subject. As we think this rule will tend to promote justice and prevent delays, we are disposed to adopt it. By adopting this rule, we hold that the Court decided erroneously in denying the application to amend the affidavit. This rule also disposes of another question raised on the argument, and that is, that the motion to dismiss was made too late after the defendant had appeared and pleaded. As we hold that such an affidavit is not the foundation of the jurisdiction of the Court, the appearance and pleading was a waiver of the irregularity in issuing the writ without a sufficient affidavit. The judgment below is reversed, and the case remanded. Judgment reversed.