Beer v. Hooper

HaNDY, J., delivered the opinion of the court. The first ground of error insisted upon is, that the affidavit and bond are insufficient to support the attachment. The objection to the affidavit is, that it is made by the plaintiffs’ attorney, and does not show that the1 plaintiffs are non-residents of the State or of the county where it 'was made. This was required by the provisions of the attachment law. Hutch. Code, 802, § 7. [255] But the general statute authorizes attorneys to make affidavits that may be necessary in all cases either in the institution or pro-, secution of any suit. Hutch. 845. And the first statute above referred to authorizes the- execution of the bond by the attorney. Hutch. 802, § 8. Another objection to the proceedings is, that an issue was not made up and tried before a jury, traversing the answers of the garnishee and of the plaintiff in error, who appeared and claimed title to the debt attached in the garnishee’s hands. Under the circumstances of the case this was unnecessary. The plaintiffs, in attachment moved for judgment against the garnishee upon the facts stated in his answer and that of the plaintiff in error, upon the ground that the facts stated showed no sufficient reason why the judgment should not be rendered for the plaintiff. This was equivalent to a demurrer, and presented a question of law to be decided by the court, and not a question for a jury. It was properly made upon motion for judgment upon the answers, because, in proceedings of this nature, not being governed by the rules of pleading according to the rules of the common law, and partaking rather of the nature of proceedings in chancery, a demurrer was not necessary to test the legal sufficiency of the defence set up in the answers. The last ground of error is, that the debt attached was not liable to the judgment rendered against the plaintiff in error, because, under the proceedings of insolvency in Louisiana, it had been passed to the plaintiff in error as syndic for his creditors, before the institution of the attachment in this case. It appears by the record that the attaching creditors in this suit were not citizens or residents of the State of Louisiana; and it is well settled in this country, that the insolvent proceedings in that State could not affect the debt due the insolvents in this State so as to debar the plaintiffs from suing out their attachment and levying it upon the debt. The attachment was brought before the syndic had taken any steps by suit in this State, to assert his claim upon the debt, in vil’tue of the insolvent proceedings in Louisiana; and by the well-established doctrine in this country, the plaintiffs, not having assented to these proceedings, had the right to subject [256] the debt due them in this State by the insolvent, to their attachment. Story’s Confl. Laws, 346; 2 Kent, Com. 407, 408. Let the judgment be affirmed. A re-argument was asked for, but refused.