Smith v. Victorin

Vanderburgh, J. Tbis action was commenced by attachment in justice’s court, 1. Tbe first question raised involves tbe sufficiency of tbe affidavit for tbe attachment. The defendant appeared specially, and moved to dismiss on tbe ground that tbe affidavit did not show that it was made by tbe plaintiff, or some one in bis behalf, as tbe statute requires. Tbe language of tbe affidavit is as follows: “M. P. Cannon, agent of Geo. H. Smith, being duly sworn, deposes and says,” etc. Tbe strict rule insisted on by tbe defendant is sanctioned by tbe Wisconsin decisions, which require that in such cases tbe affiant should swear that be is agent of tbe plaintiff, or makes tbe affidavit' in his behalf. Miller v. Chicago, M. v St. P. Ry. Co., 58 Wis. 312, (17 N. W. Rep. 130.) But we do not think [340] that, by a fair interpretation of the statute, such technical strictness would be required; and, while a careful, lawyer would be likely to prepare the affidavit in the form insisted on by the defendant, the majority of practitioners in that court would make the affidavit in the form in which it is here presented. Cannon procures the attachment in behalf of the plaintiff, as his agent, and, by a fair construction of the affidavit, makes it in the capacity of agent. We think it substantially in compliance with the statute. (Opinion published 56 N. W. Rep. 47.) 2. The judgment was for $20 damages and $5.65 costs. The items which make up the costs are not specified in the record. The parties were entitled to have these items entered on the docket, but the omission to do so does not render the judgment erroneous. Meister v. Russell, 53 Minn. 54, (54 N. W. Rep. 935.) The presumption is that the justice did his duty, and taxed only such costs as were legally taxable; and the same presumptions exist in favor of the regularity in the proceedings of a justice of the peace, where he has jurisdiction, as in courts of record. Clague v. Hodgson, 16 Minn. 329-333, (Gil. 291.) As it does not affirmatively appear that the amount of costs included in the judgment was erroneous, the proper course for the defendant to pursue, if he was dissatisfied, was to apply for an order in the District Court, directing the justice to amend his return, and to specify the particular items included in the judgment for costs. 3. The last assignment of error raises the question of the constitutionality of the act of 1891, (Sp. Laws 1891, ch. 125,) providing for the election of justices of the peace within the city of Minneapolis, and further providing that justices of the peace outside of the city snould not issue process to be served within the city. But the question raised was considered and determined adversely to defendant’s contention in the case of Burke v. St. Paul, M. & M. Ry. Co., 35 Minn. 173, (28 N. W. Rep. 190.) Judgment affirmed.