Dean v. Oppenheimer

Weisel, J., delivered the opinion of this Court. The attachment proceeding in this case was under the Act of 1864, ch. 306, and the order appealed from is one sustaining a motion to quash made on behalf of the appellee, as garnishee and claimant of the property seized under the writ. A similar proceeding and motion took place in the case of George W. Howard and others against the same defendant, which was argued in this Court upon appeal in connexion with this, and which has been decided at the present term. Many of the points in that case are the same with those in this appeal, and the opinion filed in it will be found applicable to them. We find in this case one defect in the affidavit made as the ground-work of the attachment, which is sufficient of itself to sustain the motion to quash, and that is the part in which Charles Stinchcomb, the person making the affidavit, swears that he, Stinchcomb, knows or has good reason to believe that Ernest Oppenheimer had assigned, &c. The law requires that the affidavit should be “the plaintiff knows or believes,” &c. The affidavit is variant from that which the law prescribes as one of the conditions upon which the right to proceed by attachment in the cases given is granted. We also consider the short note filed in the case as insufficient, inasmuch as it merely specifies an indebtedness without stating the cause of action. We deem it unnecessary to notice any other peculiarities in this case, having gone much at large into a consideration of those questions which arose in the other case and which were discussed also in this. Order affirmed.