Clark v. Roberts, 1 Ill. 285, 1 Breese 285 (1828)

Dec. 1828 · Illinois Supreme Court
1 Ill. 285, 1 Breese 285
Jonathan Clark, Plaintiff in Error, v. Levi Roberts, Defendant in Error

Jonathan Clark, Plaintiff in Error, v. Levi Roberts, Defendant in Error.

ERROR TO MONTGOMERY.

If the affidavit upon which an attachment is issued, does not comply with the requisitions of the statute, all the proceedings under it are void, and the attachment ought to be quashed.

This suit was originally brought by attachment, before a justice of the peace in Madison county, sued out by Roberts against Clark upon the following affidavit, viz.:

State of Illinois, Madison county:

Levi Roberts being duly sworn, saith, that Jonathan Clark *286is justly indebted to him. in the sum of one hundred dollars, and that the said Clark is privately moving his property out of the county, and therefore prays an attachment.

Levi Roberts.

Sworn and subscribed before me this 3d day of June, 1826.

E. Marsh, J. P.

Judgment was rendered in favor of Roberts, from which Clark appealed to the circuit court of Madison county. A motion was there, made to quash the attachment, and at the same time a motion by plaintiff to amend his affidavit. The first motion was overruled, and the last sustained, to which an exception was taken. The amended affidavit is in the following form, viz.:

State of Illinois, Madison county:

Levi Roberts being duly sworn, saith, that Jonathan Clark is justly indebted to him in the sum of one hundred dollars, and that the said Jonathan Clark was, at the time of making the original affidavit in this cause, and suing out the attachment, privately moving out of the coilnty of Madison, so that the ordinary process of law could not be served upon him, and therefore prays an attachment.

Sworn to in open court, Aug. 1, 1827.

E. J. West, Clerk.

The jury could not agree upon their verdict, and a change of venue upon motion, notice and affidavit, was ordered, at the instance of Clark, to Montgomery county.

Upon a trial there, the jury found a verdict for Roberts for one hundred dollars in damages, and another bill of exceptions taken to the opinion of the court, in refusing to admit as evidence a certain agreement between one Piggot and Clark, which, as it is not noticed in the opinion of the court, is omitted. The principal errors assigned, are:

1. That the court erred in overruling Clark’s motion to quash the attachment'.

2. The court erred in permitting the plaintiff, Roberts, to amend his affidavit; and

3. The amended affidavit is also void, it not being sworn to according to law.

Opinion of the Court by

Justice Lockwood.

This action was originally commenced before a justice of the peace, by attachment. The affidavit states that Clark, the defendant below, “ is justly indebted to Roberts, in the sum of one hundred dollars, and that said Clark is privately moving his property out of the county,” &c. Judgment was rendered *287before the justice, in favor of Roberts, for one hundred dollars, and the cause removed to the circuit court of Madison county, by appeal, and subsequently the venue was changed to Montgomery, where judgment was again rendered for Roberts for one hundred dollars, besides costs. The cause is brought into this court by writ of error. A variety of errors have been assigned; it is, however, unnecessary to notice but one, which is, that the attachment was erroneously issued, and ought to have been quashed by the court. This objection is fatal.

McRoberts, for plaintiff in error.

Cavarly, for defendant in error.

The affidavit was necessary to give jurisdiction to the justice. It does not comply with the requisition of the statute; hence, all the subsequent proceedings are void. Mantz v. Hendly, 2 Hen. and Munf., 308. The courts in Kentucky sanction the same doctrine. The amendment of the affidavit, will not help the previous illegal proceedings. An affidavit being the foundation of the proceedings by attachment, must be framed agreeable to the provisions of the, statute, otherwise the justice has no jurisdiction. The circuit court ought to have quashed the attachment. The judgment below must be reversed with costs. (1)

Judgment reversed.