Graham v. Bradbury

7 Mo. 281

• Court: Supreme Court of Missouri
• Decided: September 15, 1841
• Status: Published

Opinion

Opinion of the Court by

Scott, Judge.

The plaintiffs in error sued the defendants in error by attachment, in October, 1839. The attachment was sued out on an affidavit, in which it was alleged that the defendants were not residents of, nor residing in this State. The affidavit was made in the State of Ohio, and some nine or ten days before the writ issued. The bond for the attachment was executed in this State, and the note sued on is dated Cincinnati.

On the return of the writ the defendants moved the court to quash it, because the claims sued on were debts contracted out of the State, and the affidavit does not show that the debtors, or either of them absconded, or secretly removed their property or effects to this State, with intent to defraud, defeat, hinder, or delay their creditors; that the plaintiffs and defendants are both non-residents of this State, and are residents of the city of Cincinnati, in the State of Ohio. The court below quashed the attachment, and the cause is brought here by writ of error. The statute of 1839, concerning attachments, prescribes the manner in which defendants shall defeat attachments, when the facts on which they are sued out are false.

An attachment may be quashed when it is issued on such a state of facts as does not authorise the issuing of the writ, It is not pretended that the affidavit in this case is not suffi-cjent to SUpport the attachment. If the truth of the facts on which it is issued is controverted, it must be put in issue by a plea the nature of a plea in abatement. Section 11, °fact

The remedy by attachment is not confined to resident cre-^ors. If the objection to this proceeding could have been taken in the mode adopted by the defendants, yet there was no ev^ence that the plaintiffs were non-residents. The facts that the affidavit in Ohio, and the note was dated at Cincinnati, are not sufficient evidence to show that the plaintiffs are non-residents. As to the objection that there was an interval of nine or ten days betwixt the making of the davit and the issuing of the writ, the state of the facts might have changed during the interval. The party must take advantage of it by plea; the plea would have put in issue the truth of the affidavit at the time of the issuing of the writ. Some time must necessarily in many cases intervene be-i . . - . ' , . . . .. tween the making oi the affidavit and the issuing of the writ. Judgment reversed.

reme. N by attachment is not confined to ditors0* cre*