Singleton v. Wofford ( 1842 )

Treat, Justice,

delivered the opinion of the Court:

This was a proceeding by attachment, instituted in the Alexander Circuit Court, by William Wofford, against Henry Singleton, as a nonresident debtor. Service of the attachment was made by a levy on the property of the defendant, and by the summoning of a garnishee. Due notice of the pendency of the suit was given by publication. The defendant never appeared to the action.

At the November term, 1841, the death of the plaintiff was suggested, and Lucinda Wofford, his administratrix, was made plaintiff in his stead; and during th.e same term, no scire facias having been issued, a judgment by default was rendered against Singleton for $57.77, and a special writ of fieri facias ordered, for the sale of the property attached.

To reverse this judgment, Singleton brings the record to this Court, and assigns for error,

First. The affidavit on which the attachment issued was not sworn to before an officer authorized to take it;

Second. The condition of the attachment bond is defective;

Third. The Court erred in rendering a judgment previous to the issuance and return of a scire facias.

The jurat to the affidavit is in these words: “ Sworn and subscribed before me, this 14th Sept., 1840.

“Henry L. Webb.”

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 Alexander Circuit Court. The Coprt 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.

The second error has no foundation in fact. The bond set out in the record seems to be a literal compliance with the form prescribed by the seventh section of the attachment act. ⁽¹⁾

The third error is well taken. The twenty-second section of the attachment act ⁽²⁾ provides, that where the plaintiff in the attachment shall die during the pendency of the suit, and the cause of action survives to his executor, or administrator, the suit shall not abate ; but the death being suggested on the record, his executor, or administrator shall, within three months after obtaining letters testamentary, or of administration, sue out of the clerk’s office a scire facias, returnable to the next term of the Court, giving notice of his intention to become a party to the suit, in the place of his testator, or intestate, which shall be published for four weeks successively in some newspaper, previous to the commencement of the term ; and proof thereof being exhibited to the Court, the executor, or administrator maybe made plaintiff, and proceed with the cause. In this case, there was no compliance with this provision of the statute by the administratrix, and she was, consequently, not entitled to judgment. The cause should have been continued, and a scirefacias issued, returnable to the succeeding term, and publication thereof made. For this error, the judgment of the Circuit Courtis reversed, and the cause remanded for further proceedings.

Judgment reversed.

(1) R. L. 85; Gale’s Stat. 65.

(2) R. L. 91; Gale’s Stat. 70.