Lehman v. Lowman , 50 Ark. 444 ( 1887 )

Cockrill, C. J.

Lehman & Sons caused their affidavit and bond for attachment against Lowman & Bro. to be filed in the office of the clerk of the Desha circuit court.

The order of attachment and summons for the defendants issued and were executed. No separate complaint was filed before the summons and order of attachment issued. The defendants appeared and filed a motion to quash the attachment proceeding because there -was no suit pending when the order issued, and upon other grounds that are not insisted upon here.

Before the, motion wqs beard, the plaintiffs filed a. separate complaint. The defendants’ motion was sustained, tbe order of attachment was quashed and the attached property released — leave being extendéd to the. plaintiffs by the court to cause a new order to issue as of the date of the filing of their separate complaint. The plaintiffs took judgment in-personam, and prosecute this, appeal to reverse the judgment quashing their attachment.

The ease of Sannoner v. Jacobson, decided since the judgment in this cause was rendered, is, decisive of the question presented. 47 Ark., 31. It was there determined that if an affidavit for attachment contains the-essentials of a complaint, the absence of the separate complaint required by the statute is not a defect that goes to the jurisdiction or power to issue the ¡order of' attachment, but is an irregularity in practice only, subject to be cured by amendment.

In this appeal, the affidavit contains all the requisites^ of a complaint pointed out in Sannoner’s case, and the plaintiffs in apt time availed themselves of the right to amend by filing a separate complaint conforming to the. strict requirements of the practice. It was error,, therefore, to quasb the attachment.

Reverse the judgment appealed from, and remand the cause for further proceedings.