Brandenburg v. Malcolm

Appellate Court of Illinois

Brandenburg v. Malcolm

102 Ill. App. 302, 1902 Ill. App. LEXIS 509

DecidedMay 23, 1902

StatusPublished

This text of 102 Ill. App. 302 (Brandenburg v. Malcolm) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Brandenburg v. Malcolm, 102 Ill. App. 302, 1902 Ill. App. LEXIS 509 (Ill. Ct. App. 1902).

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Opinion

Mr. Justice Waterman

delivered the opinion of the court.

It is not enough that one making an affidavit for attachment shall be informed and believe that one or more of the statutory grounds for an attachment exist. He must make oath to the existence of the facts upon which he asks for the writ; and upon trial the plaintiff must prove such existence; not merely that he or his agent had heard or seen certain things from which the reasonable inference was and is that the debtor had done or was about to do that which under oath was alleged, but that the affidavit is true in substance and fact. Prins v. Hinchcliff, 17 Ill. App. 153; Foster v. Illinski, 3 Ill. App. 345; Dyer v. Flint, 21 Ill. 80; Archer v. Claflin, 31 Ill. 306.

The most that appellant established upon the trial of this cause was that Mr. Marsh had seen and been told things that justified him in believing that the attachment affidavit by him made was true.

That none of the alleged grounds for attachment existed was abundantly established in the trial below. The verdict of the jury upon the attachment issues and the judgment of the court thereon were so in accordance with the evidence that the error, if any there were, in that which appellant terms “reprimanding” a witness, must he overlooked. The affidavit of Miss Iiaolpke introduced in support of the motion for a new trial added nothing new and material to that adduced at the trial.

The judgment of the Superior Court is affirmed.

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Mr. Justice Waterman

delivered the opinion of the court.

It is not enough that one making an affidavit for attachment shall be informed and believe that one or more of the statutory grounds for an attachment exist. He must make oath to the existence of the facts upon which he asks for the writ; and upon trial the plaintiff must prove such existence; not merely that he or his agent had heard or seen certain things from which the reasonable inference was and is that the debtor had done or was about to do that which under oath was alleged, but that the affidavit is true in substance and fact. Prins v. Hinchcliff, 17 Ill. App. 153; Foster v. Illinski, 3 Ill. App. 345; Dyer v. Flint, 21 Ill. 80; Archer v. Claflin, 31 Ill. 306.

The most that appellant established upon the trial of this cause was that Mr. Marsh had seen and been told things that justified him in believing that the attachment affidavit by him made was true.

That none of the alleged grounds for attachment existed was abundantly established in the trial below. The verdict of the jury upon the attachment issues and the judgment of the court thereon were so in accordance with the evidence that the error, if any there were, in that which appellant terms “reprimanding” a witness, must he overlooked. The affidavit of Miss Iiaolpke introduced in support of the motion for a new trial added nothing new and material to that adduced at the trial.

The judgment of the Superior Court is affirmed.

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102 Ill. App. 302, 1902 Ill. App. LEXIS 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brandenburg-v-malcolm-illappct-1902.

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