State v. Morris , 50 Iowa 203 ( 1878 )

Day, J.

, , , staters pnfntI& I. Sections 3005 and 3006 of the Code are as follows: “In all cases 'in which any person is indebted to the State of Iowa, or to any officer or agent of the State for the use or benefit of the State, the proper District Attorney, or the Attorney General, shall demand payment or security therefor whenever, in the opinion of said District Attorney or Attorney General, the debt is not sufficiently secured. In all suits for money due to the State of Iowa, or due to any State agent or officer for the use of the State, it shall be lawful for an attachment to issue against the property or debts of the defendant, not exempt from execution, upon the filing of an affidavit by the District Attorney of the proper district, or of the Attorney General, that he verily believes that a specific amount therein stated is justly due, and the defendant therein has refused to pay or secure the same, and that unless an attachment is issued against the property of the defendant there is danger that the amount due will be lost to the State.”

These sections evidently contemplate that an attachment shall issue, for the cause therein stated, only when demand has been made upon the debtor for payment or security, and he has refused to pay or secure the claim. The affidavit in this .case does not state that the defendant has refused to pay or secure the demand. In fact, it states -that no demand for payment or security has been made upon the defendant, for the reason that he so absents himself that no demand can be made. It is not even stated that the defendant absents himself to avoid a demand for payment or security.

It appears, from the affidavit of Worthington, that the-defendant is in Chicago. No reason is given why demand for payment or security might not have been made upon him there. The statute has not authorized an attachment in case the defendant is absent from the State so that demand for payment or security cannot be made within the State; and were we to extend the statute to such a case by construction, our act would be nothing less than judicial legislation. If it is desirable that an attachment should issue in such a case the remedy must be provided by the Legislature.

2_¡cause iorII. It is claimed, however, that sufficient has been alleged to authorize an attachment under section 2951 of the Code. -ft is sa^ affidavit of the District Attorney shows that the defendant cannot be found, and the affidavit of Worthington shows that the defendant is in Chicago, and that he is about to remove his property from the State of Iowa. It is not stated in the affidavit of the District Attorney that the defendant has absconded, so that the ordinary process cannot be served upon him. Merely absenting one’s self is not equivalent to absconding. The affidavit of Worthington shows that defendant is in Chicago, but not that he is a non-resident of the State.of Iowa. It. states further that he is about to sell or remove his property from the State of Iowa, or make some disposition of same. In addition to the objection that 'facts are here stated in the alternative, there is a failure to state, as the statute requires, that the removal contemplated is without leaving sufficient remaining for the payment of his debts. No cause for attachment is assigned under section 2951 of the Code.

III. Should we be of opinion that there was no error m sustaining the motion to quash, we are asked to send the cause back to the District Court, with instructions that the plaintiff have leave to amend the affidavit for attachment, as provided in section 3021 of the Code. This is a law action, reviewable here simply upon errors assigned. No leave to amend was asked in the court below, and hence that court made no ruling upon the right to amend. Having determined that the court below committed no error of law, our duty is to affirm the case. The remaining causes assigned in the motion to discharge need not be considered.

Aeeirmed.