O'Brien v. Daniel

2 Blackf. 290, 1829 Ind. LEXIS 44

• Court: Indiana Supreme Court
• Decided: November 12, 1829
• Status: Published

Opinion

Holman, J.

Domestic attachment on the following affidavit:—“State of Indiana, Posey county, ss. I, Richard Daniel, of the county aforesaid, do solemnly swear that John J. O'Brien, James J. O'Brien, and Michael O'Byrns, executors of the last will and testament of Thomas Jones, deceased, are justly indebted to me, the said Richard Daniel, in the sum of 150 dollars; and that the said John J. O'Brien, James J. O'Brien, and Michael O'Byrns, so conceal themselves that the ordinary process of law cannot be served upon them.—R. Daniel." Endorsed, sworn to, &c. A number of creditors filed their claims under this attachment, and proceedings were had to final judgment. Among a variety of errors assigned for reversing these proceedings, two exceptions are taken to the affidavit. One is, that the affidavit does 'specify the nature of the debt on which the attachment is founded: but as a declaration was afterwards filed by Daniel, specifying the nature, &c. of his debt, this defect is removed. The other is, that the affidavit does not state that the debtors were late of the said county, as required by the act of assembly, or of any other county in this state. This exception is well taken. The act of assembly requires the affidavit to state the late residence of the debtors. R. C. 1824, p. 61

(1). From any thing in this affidavit, the debtors may have been non-residents, and not subject to a domestic attachment. The ex parte nature of these proceedings requires a strict compliance with every statutory requisition.

Per Curiam.

The judgment is reversed with costs. To be certified, &c.

Accord. R. C. 1831, p. 75.