Hart v. Cummins

1 Iowa 564

Opinion

Wright, C. J.

Footnotes

•

(1)

The defendant' insists that tbe court below, improperly admitted the transcript in evidence, because the writ of summons,, therein recited, was not signed" by the prothonotary, or by any person as his deputy, and also because the record did not show such service as gave the said Union county court, jurisdiction over the person of said defendant.- Neither objection-is well-ta-ken. It appears-that the writ was under the seal of the proper court, and waS-returned by the proper sheriff. The record' also discloses,, aside from the writ, that the defendant was “ summoned.”' Under such circumstances, it would be going farther than is-warranted by any authority found, to- say that such judgment was not entitled to faith and credit, because the person using the name of the prothonotary, or acting for him, failed to attach to his name the word “ deputy.” It would be a technical objection at most, to a writ, in an appellate court, reviewing directly the judgment, let alone when urged in a proceeding such as the one before us. To allow such an irregularity to- affect the faith and credit due to such judgments, would- be‘to violate the spirit of the act of 1790, and' deny to them- the eonclusiveness which the policy, as well as the letter, of the statute contemplates.

The second objection is- equally untenable. See the case of Latterett v. Cook, ante, 1. There the writ, which brought the party into court on the judgment sued upon, appeared to have been returned “served,”' and' signed by the proper sheriff. In the absence of all showing to the contrary, it was held, that the court rendering the judgment had jurisdiction of the person, and that the same was entitled to full-faith and credit. We see no reason to change the rule there recognized. In this case, the writ ivas returned “ Summoned, per copy October 24,1838 — so answers Wm. Glover, sheriff.” If a return of “served” would be sufficient, much inore clearly the return in this case.

We next consider tbe sufficiency of tbe affidavit for tbe attachment. Tbe act of January 24th, 1853 (laws of 1853, 143), provides, that “ a party is entitled to an attachment, if, after stating tbe amount claimed to be due, be shall state in bis affidavit, that tbe defendant has property, goods, or money, or lands and tenements, or cboses in action, not exempt from execution, which be refuses to give, either in payment or security of said debt.” Defendant urges that tbe affidavit, in this case, is defective, because it does not describe what lands and tenements of defendant were exempt from execution, and also because tbe place where tbe payment or security was demanded, is not stated. Tbe affidavit, so far as relates to the ground for the attachment, is set out in hcec verba in tbe statement of tbe case, and without specifying again its averments in detail, we are clearly of tbe opinion that is sufficient. It will be seen that tbe law, in terms, does not require that tbe affiant shall state specifically tbe property that is exempt, and we can conceive of no good reason why it should be construed as requiring it, by implication or otherwise. To require it would in no manner tend to protect any right defendant could claim, and to bold it unnecessary cannot prejudice him. And'so it is, with reference .to requiring tbe plaintiff to'state the-place of the demand. It is urged by counsel, that tbe demand for payment or security should be made at a place where defendant could be able to comply, and not at a place distant from tbe property, or from tbe defendant’s residence, where alone be is presumed to be able to make tbe necessary conveyances. But it must be borne in mind, that it is tbe refusal to give tbe property in payment or security, which gives the right to tbe attachment, not tbe mere inability to do so, because of being absent from such property. Tbe law, in effect, says, it is reasonable, and imposing no improper duty on a defendant, to require -him to give bis property in payment or security of bis debt, when requested. Should be refuse to comply with this reasonable request, be becomes liable to have bis property attached. If be does so refuse, what matters -it -where tbe request is made? If lie accedes to the request, and proceeds with reasonable expedition to comply, he should not be liable to attachment. If he does not, he is liable. The particularity insisted upon by defendant, is not required by the law, and we see no reason for holding a plaintiff to make averments that the statute does not appear to have regarded essential.

The order of the court below, dissolving the attachment, is reversed, and in.all other respects, the judgment is affirmed.

Isbell, J., having been of counsel, took no part In the determination of this cause.