Foyles v. Kelso

1 Blackf. 215, 1822 Ind. LEXIS 33

• Court: Indiana Supreme Court
• Decided: November 7, 1822
• Status: Published

Opinion

Holman, J.

The judgment in this case was against Foyles on a domestic attachment. As this is an extraordinary remedy given by statute, and the proceedings are ex parte, justice would require that a strict observance of every material requisition of the statute should appear in the record, in order to entitle the plaintiff to recover. The second section of the act authorizing domestic attachments provides, that, on the service and return of the attachment, the clerk shall notify the defendant of the pendency there of by advertisement

(1). Before the Circuit Court is authorized to proceed to judgment, it should be judicially satisfied that such notice had been published agreeably to the provisions of the act. And it should appear in the record that such Court had had satisfactory evidence of that fact; or the evidence itself should be set out: either would suffice. In this case it does not appear that any such notice was given, or that the Circuit Court ever adjudicated, on that part of the case; which renders all the subsequent proceedings erroneous.

In this record the names of but eleven jurors appear. This is at present rendered unimportant; but it would be advisable for the counsel to have the names of all the jurors, who try their causes, regularly enrolled, before it becomes too late to supply the omission.

Kinney, for the plaintiff. Moore, for the defendant.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the return of the attachment are set aside, with costs. Cause remanded, &c.

Stat. 1817, p. 100; — 1823, p. 62. The affidavit, writ of attachment, and declaration if there be one, must appear in the record. Bond v. Patterson, ante, p. 34. So must the bond. Cousins v. Brashier, ante, p. 85.