Kegel v. Schrenkheisen

Cooley, C. J. The suit in the court below was begun by attachment. The affidavit for attachment was made by an agent for the plaintiffs, who made oath that “he is informed and believes to be true, and charges the same to be true, that the defendant Julius Kegel has assigned, disposed of or concealed, or is about to assign, dispose of or conceal his property, with intent to defraud his creditors.” This affidavit is fatally defective because in the alternative. It should show the existence of either one cause or the other; which this affidavit does not. It is in another particular not in compliance with the statute. The statute, Comp. L., § 6398, requires that the affidavit shall show the affiant “knows or has good reason to believe” that the alleged cause for an attachment exists. That is not the showing here, and we are not prepared to say that the showing made is the equivalent of that which the statute requires. But as in the other particular the defect is apparent, any further error is immaterial, and need not be considered. The default on which judgment was taken appears to have been entered twenty-one days after the return day of' the writ, — the declaration having been filed on the return day. This was premature. Circuit Court Bule 16. It is said, however, that the default was justified by rules adopted by the court below for its own practice under the statute by which the court was created. No rule on the subject has been approved by this court, and we think under the amendatory act of 1875 — General Laws, p. 6 — such rules would be inoperative until approved. The judgment must be reversed with costs of both courts and the proceedings quashed. The other Justices concurred.