Theirman v. Vahle

Ray, J. Complaint by appellants upon an account for goods sold and delivered by them to the appellee. 'Pinal judgment was rendered for the appellants. An affidavit in attachment was also filed at- the time of bringing the action, and a writ was issued and property of the appellee seized by the sheriff. A motion was made to qpash the writ, “ because the affidavit upon which it was issued is not sufficient in form, does not state facts sufficient to authorize an attachment, and is accompanied by and eon- • tains no proper bill of particulars of the cause of action.” This motion was sustained,, and' from that ruling error is assigned on this appeal. G. L. Dunham, S. 2?. Perkins, O. F..Baker, and 8. F. Perkins, Jr., for appellants. A. Dowling, T. L. Smith, J. II. Stotsenburg, and, T. M.. Brown, for appellee. It is objected, that no appeal will lie from this ruling. But the entire record is before us, and this dismissal of the attachment is the error assigned: It is a final judgment for costs against the appellants, and dismisses their proceedings. in attachment. Two final judgments are sought, one against the person, the other, giving effect to the judgment, against the property of the appellee. ■ The suit commenced by summons is in personam, and the attachment proceedings in rem. When the writ is quashed, the direct proceedings against the property are at an end; and if the suit in personam is successful, we know of no reason why an appeal will not lie and error be assigned on the judgment on the proceedings in rem. The dicision in Abbott v. Zeigler, 9 Ind. 511, does not approve itself to our judgment. ' ' ' The objection taken to the affidavit is, that it does not contain, in itself, or is not accompanied by, a sufficient bill of particulars. The averment is, “ that said defendant is justly indebted to said plaintiff in the sum of eight hundred and three dolíais and forty-five cents, a balance due on account for goods sold and delivered; that the claim is just, and that he believes he ought to recover the amount above stated.” The statute requires the affidavit to show “ the nature of the plaintiff’s claim.” 2 G. & H. 139, sec. 159. This the affidavit certainly does. It is for a balance on account for golds sold and delivered. Each item of the account is not required to be stated in the affidavit, but simply the nature of the claim. The motion to quash should have been overruled. The judgment quashing the writ and dismissing the attachment is reversed, with costs, and. the cause remanded for further proceedings.