Syndicate des Cultivators des Oignons a Fleur v. Currie , 72 Ill. App. 122 ( 1897 )

Mr. Justice Sears

delivered the opinion of the Court.

This suit is upon contract, was begun by attachment, and resulted in judgment by default against plaintiff in error. Ho service of process was had save by publication, based upon the affidavit for attachment.

The case turns upon the sufficiency of the affidavit, which is the basis of the attachment proceeding, and of the court’s jurisdiction. - .....

The affidavit recites that affiant “ is one of the plaintiffs herein, and makes this affidavit on their behalf, that (naming the plaintiffs) have a just demand against Syndicate des Cultivators des Oignons a Fleur, a foreign corporation, on account of damages for breach of express contract, and the affiant believes that the plaintiffs (naming them) are entitled to recover of Syndicate des Cultivators des Oignons a Fleur, after allowing all' just credits and set-offs, seven hundred and seventy dollars and forty-eight cents, which is now due, and that he has good reason to believe, and does believe that the said Syndicate des Cultivators des Oignons a Fleur is a foreign corporation, and is not a resident of the State of Illinois, and that the place of residence and location of the principal office . of the said Syndicate des Cultivators des Oignons a Fleur is at Ollioules (Var.), France.”

The affidavit for an attachment must allege the several matters necessary to authorize the writ, in positive and unequivocal terms. Prins v. Hinchliff, 17 Ill. App. 153.

Hor may .these, allegations be made upon information and belief alone.

“ Information and belief can not supply the place of a positive allegation that the defendant is indebted, or, that he is non-resident.” Dyer v. Flint, 21 Ill. 80.

The rule can, in principle, be extended as well to cover an allegation upon belief alone. A statement upon belief only, unaccompanied by showing as to whether such belief is founded upon knowledge or information, can not be accepted as a substitute for positive averment.

The statute has been construed to require a positive allegation of non-residence, as a fact within the knowledge of the affiant, and a like allegation of indebtedness as a fact within his knowledge. Archer v. Claflin, 31 Ill. 306.

The case In re Keller, 36 Fed. Rep. 681; cited, which interprets a statute requiring positive verification, seems, so far as the facts of the ease are disclosed, to support the contention of counsel for defendant in error. But we decline to accept that decision as authority contra the reasonable and well settled rule of our own State.

The judgment is reversed and the cause remanded.