Bowers v. London Bank of Utah

3 Utah 417

• Court: Utah Supreme Court
• Decided: June 15, 1884
• Status: Published

Opinion

Emerson, J.:

The statute leaves no discretion in any one as to the amount which shall be stated in the writ of attachment. It is a plain, direct, and specific instruction and direction, which the clerk has no right or authority to disregard. The process of attachment is a special statutory remedy, and in resorting to it, the terms of the law conferring it must be strictly pursued. If the clerk had stated any other sum in the writ than that in conformity with the demand in the complaint, it would have been a material departure from the'requirements of the statute, and would have vitiated the proceeding and rendered it utterly void. The requirements of the statute are so plain and explicit that there is no room left for construction or speculation.

The statute leaves a wide discretion in the clerk as to the amount of the undertaking he shall require before issuing the writ. Where this discretion has been exercised within the limits prescribed by the statute, it can not be said that the writ was improperly issued.

The affidavit sufficiently specifies the nature of the demand to satisfy the requirements of the statute in this respect-The allegation that it is on a contract for the direct payment of money, with the further allegation of how the debt accrued, sufficiently specifies the nature of the contract.

No good purpose would be subserved in requiring the allegations of the complaint, either minutely or generally, to be copied into an affidavit for an attachment. It is sufficient if the affidavit shows by general terms in describing the nature of the demand that it is the same debt for which the action is prosecuted.

The order of the court below in refusing to discharge the attachment is affirmed.

Hunter, C. J., and Twiss, J., concurred.