West v. Woolfolk , 21 Fla. 189 ( 1885 )

Mr. Justice VanValkenburgh

delivered the opinion of the court:

The question is, did the Circuit Court of Jackson county acquire jurisdiction by virtue of the affidavit and other proceedings to issue the writ of attachment? Tt is a case where the court acquires special jurisdiction derived from and exercisable only according to statute, and has the power to take such judicial action only through the modes of procedure prescribed by the statute. In other words, the jurisdiction is extraordinary, “ that is, such as is provided by statute for exceptional cases, and are available only under particular circumstances designated by statute;” “ where a court or officer exercises an extraordinary power under a special statute prescribing the occasion and mode of its exercise the proceedings will be held illegal unless they be according to the statute, and the facts confirming jurisdiction appear affirmatively.” Drake on Attachment, §85.

The writ of attachment in this case was issued under and by virtue of sections 18, 14 and 15 of chapter 7, MClellan’s Digest, p. 113. Section fourteen provides as follows:

“ Such writ shall in no case be issued unless the party applying for' the same, or his agent or attorney, shall first make oath in writing that the amount of the debt or demand claimed and charged against the opposite party is actually an existing debt or demand, stating also in said oath in writing the time when said debt or demand will actually become due and payable; and also that the party against whom the said writ of attachment is applied for is actually removing his or her property beyond the limits of this State, or (as the case maybe) is fraudulently disposing of, or secreting the same for the purpose of avoiding the payment of his or her- just debt or demand, satisfactory proof of which shall be demanded and produced to the officer granting the attachment.”

Section fifteen provides that “ no attachment shall issue until the party applying for the same, by himself or by his agent or attorney, shall enter into bond with at least two. good and sufficient securities payable to the defendant, in at least double the debt or sum demanded, conditioned to-pay all costs and damages the defendant may sustain in consequence of improperly suing out said attachment; Provided, nevertheless, That the bond taken in case of attachment shall not, on account of any informality in the sáme, be adjudged void as against obligors, nor shall they be discharged therefrom, although the attachment be dissolved by reason thereof.”

The statute nowhere provides that the affidavit, or the bond upon which the attachment issues and which gives, to the court its jurisdiction in the case, shall be entitled in the cause. No praecipe is required. Upon filing with the court from which an attachment is asked the prescribed affidavits and bond, the writ is issued and the suit is then inaugurated. In this case, however, the affidavit of the creditor is entitled “State of Florida, Jackson county,” arid is sworn to before “ Frank Philips, Clerk,” and is en-(Horsed-:' “ 'Filed ;21st Dec., 1883, Frank Philips, Clerk-Circuit Court.”

On-the same day the affidavit of West and Burke, showing that the defendant was disposing of his property, was filed. The same day the bond was filed and at the same time the writ of attachment was issued. That writ is entitled “ First Judicial Circuit of Florida, Circuit Court of Jackson county,” and is directed to “Andrew Scott, Sheriff of Jackson county,” commanding him to return the same to the Circuit Court of the county of Jackson on the 7th day of January, A. D. 1884. This writ was duly executed1 by the sheriff and was returned as appears by the record' on the 5th day of January, 1884,. to the clerk’s office in the county of Jackson. The necessary papers under the statute were all filed on the same day and the writ was issued at the same time. It is a rule of law, “ that where two or more aids are done at the same time, that will take effect first which ought in strictness to have been done first in order to give it effect.” The affidavits and bond each comply with the requirements of the statute, in all respects, and consequently the motion to dissolve should not have been granted, and the attachment ought not to have been dismissed. In Kinney and Goodrich vs. Heald, 17 Ark., §97, which was an action, of assumpsit, commenced by attachment, the affidavit upon which the writ issued was as follows:

“We (plaintiff’s attorneys) do depose and say that the defendants (naming them) are justly indebted to John EL Healdin the sum of $836.19, which sum is now due, and that the said defendants (naming them) are not residents of- the State of Arkansas.” The affidavit was written on a separate piece of paper, not “ entitled,” nor connected with, or; attaehed'tb, any of the-original papers in the cause. The< court in their opinion-say :• “As far as we can-judge from'the face of the affidavit, on which the attachment issued, it contains all the substantial requirements of the statute. The mere fact of its having been written on a detached piece of paper and not “ entitled,” though a loose and irregular mode of procedure, in such cases is not so to such an extent as to authorize this court to say that the court below should have sustained the exception of the plaintiffs in error taken to the affidavit on this account.”

In the case of Cheadle vs. Riddle, 6 Ark., 480, which was an action of debt by attachment, a motion was made to dissolve the attachment- upon three grounds, the first of which being that the affidavit upon which it was issued “ was not entitled of. the court in which it was intended to be used, nor of the names of the parties to said action.” The court, Johnson, O. J., delivering the opinion says, “the affidavit filed by the plaintiff below is conceived to be a substantial compliance with the requisitions of the statute, and consequently the Circuit Court properly overruled the exception to it.”

In the case of Livingston vs. Wofford, 4 Ill., 3 Scammon, 576, the appellant moved to reverse the judgment and assigned for error, among others, that “the affidavit on which the attachment issued was not sworn to before an officer authorized to take it.” The court say: “By reference to. the record it appears that the writ of attachment issued on the same day is tested in the name of and signed by Henry L. Webb as clerk of the Alexandria Circuit Court, The court will presume that the affidavit was sworn to before the same officer, and as the clerk is by law in such cases authorized to take affidavits, the affidavit in this case was properly made.” They decide that where the jurat to an affidavit for a writ of attachment showed that the affidavit was sworn- to before “ Henry L. Webb,” and the writ was tested and signed by “Henry L. Webb, Clerk of the Alexandria Circuit Court,” that the court would presume that the affidavit was sworn to before the clerk. Stout vs. Folger, 34 Iowa, 71.

In this court in Branch vs. Branch, 6 Fla., 315, which was an action in replevin, this court say: “ It is said again that the jurat to the affidavit is defective, and that the bond is not approved as required by the statute. • This is because the officer who put his jurat to the affidavit, and approved the bond, signed merely “ Robert Bullock, clerk,” and it is urged that this does- not show that he was Clerk of Marion C'reuit Court, where the suit was instituted. But it appears from the record, that the affidavit was made, the bond executed, and the writ issued on the same ■day, and in his test of the writ, he describes himself as Robert Bullock, Clerk of the Circuit Court for Marion county, and the affidavit and bond were both filed in the office of the Clerk of that court on the same day that they were made and executed, and it has not been alleged or pretended that there was or has been any other action of replevin between these parties in' that court. .It would seem therefore that there could be no difficulty in identifying all these'proceedings with each' other in this suit, and it not being denied (or pretended here) that he was such clerk, (a matter of most easy ascertainment,) we are clearly of opinion that the objection in regard to these matters (if in time) could not be sustained.” In relation to the bond filed in this case, our statute does not require that it shall be approved in writing before the'writ issues. The fact that the writ does issue in due form, is evidence that the bond filed in the clerk’s office with the securities is approved of by the Clerk. Levi vs. Darling, 28 Ind., 497; Mandell vs. Peet & Co , 18 Ark., 236 ; Griffith vs. Robinson, 19 Texas, 219. If no bond was filed in pursuance of the statute, then the writ is void and may be dismissed ’oh motion. But "in this cáse, before the motion to dismiss was made the clerk filed his certificaté in th'e cause that he did approve the bond, and that his written approval thereon was omitted through inadvertence, and offered to endorse his approval thereon nunc pro■ tunc. There were also filed affidavits showing two securities on the bond were amply worth all that was required by the statute to warrant the issuing of the writ. The statute in terms provides that this “bond shall not, on account of any informality in the same, be adjudged void as against obligors, nor shall they be discharged therefrom although the attachment be dissolved by reason thereof,” thus protecting the defendant in the attachment although it may be dissolved by reason of informalities in other proceedings. In the cáse in 3 Scammon, supra, it is said that “ an attachment bond which is literally in the form prescribed by the statute is valid although it does not state in what court the proceedings are had.” Even if it had been necessary under the statute that the bond should have been endorsed as approved by the clerk, before the motion to quash was passed upon by the court, the clerk certifies under the seal of the court that he did approve it before the writ issued, and then offers to endorse his approval thereon mine pro tunc.

The defendant in the attachment was in no way prejudiced. 3J], Iowa, supra.

In deciding the motion to quash the attachment the court below put it upon the ground “that neither the affidavit nor bond in attachment shows in what court the proceeding is.”

If desired the plaintiff has a right to amend his declaration as he may deem necessary.

The judgment of the court below is reversed!