Britton v. Gregg , 96 Ill. App. 29 ( 1901 )

Mr. Presiding Justice Shepard

delivered the opinion of the court.

The record shows that the Superior Court was without power to render judgment against the defendants. The affidavit shovvn is not in compliance with the statute. The statute, section' 2, of the act entitled “ Attachments,” is as follows:

“ To entitle a creditor to such writ of attachment, he or his agent or attorney shall make and file with the clerk of such court an affidavit setting forth the nature and amount of the indebtedness, after allowing all just credits and set-offs, and' any. one or more of the-causes mentioned in the preceding séction, and also stating the place of residence of the defendants, if known, and if not known, that upon diligent inquiry the affiant has not been able to ascertain the same.”.. .

A compliance with the positive requirements of the statute is necessary, in order to confer jurisdiction, where there is no personal service or appearance of' the defendant. Reitz v. People, for use, 77 Ill. 518; Prins v. Hinchliff, 17 Ill. App. 153; Thormeyer v. Sisson, 83 Ill. 188.

The chief defects in the affidavit particularly observable, are (a) that it fails to state the place of residence of Serra Y. Gallivan, or that upon diligent inquiry the affiant has been unable to ascertain the same, and (b) that as to James TVT- Hedges it does not state that he was indebted to the plaintiff in any sum whatever. A similar statute to the one under consideration, in respect of a statement of the indebtedness of the defendant, was in force at the time the facts arose that were passed upon by the Supreme Court in Dyer v. Flint, 21 Ill. 80, and the court there said:

“ These requirements of the statute must be fulfilled. The- creditor or agent making the affidavit can not rely upon hearsay as to either. He must positively allege both the non-residence and the indebtedness—its nature and amount as near as may be—as near as the peculiar kind of indebtedness will enable him to do.’’ * * *

“ We have no power to release the parties from the requirements of the statute or to relax a rule therein prescribed. * * * We must adhere to the words of the statute, leaving to the legislature, where it belongs, the question of any change or modification in it, that may be desirable or necessary.”

So, in Thormeyer v. Sisson, supra, the court in considering generally the requirements of the attachment act, said :

“ Ho principle is better settled by the previous decisions of this court than that, in attachment proceedings, all the essential requirements of the statute giving the remedy must be observed. Attachment is a remedy given by statute, and it must appear, affirmatively, its provisions" have been substantially conformed to, before the court can obtain jurisdiction, where there is personal service of the attachment writ or appearance of defendant. * * *

It was incumbent on plaintiff, before suing out an attachment, not only to set forth the nature of the indebtedness and the causes for attachment, but also allege the place of residence of defendants, if known.”

The affidavit was most clearly insufficient to authorize the writ against the property of Hedges, and the judgment as to him was wholly without jurisdiction. And it being a joint judgment and an entirety, it was invalid as to the plaintiff in error, also. Claflin v. Dunne, 129 Ill. 241.

The filing of the affidavit of non-residence of Serra "V". Gfallivan, stating her then place of residence, and the mailing of the copy of publication to her, more than two years after the return of the attachment writ, was ineffective as to her. Parker v. Scheller, 60 Ill. App. 621.

We see no remedy open to the defendant in error by further proceedings that can be taken below in this cause, and therefore reverse the judgment without remanding the cause. Reversed.