Bennett v. Zabriski ( 1881 )

Prince, Chief Justice,

dissenting: On the rehearing in this case I regret to find myself unable to concur with my colleagues in their conclusions that the judgment rendered at the last 'session was correct, although on less consideration I concurred in it.

This action was commenced as provided in Chap. 21, sec. 2 of the Statutes (page 136, General Laws), which provides that “ a creditor wishing to sue his debtor by attachment, may place in the clerk’s office a petition or other lawful statement of his cause of action; and shall also file an affidavit and bond.” Thereupon the attachment writ is issued.

This is different from the proceedings under the act of 1855 (page 140, General Laws), which provides for the issuance of the writ on filing an affidavit and bond only.

In this case, the petition or statement of the cause was filed April 16, 1875, and is the first paper appearing in the transcript. At the same time, apparently, at any rate on the same day, an affidavit and bond were filed, and thereupon the writ was issued.

The petition states the plaintiffs to be Cornelius Bennett, Joseph F. Bennett and Henry Lisinsky, doing business under the firm name of Bennett Brothers & Co., at Silver City.

The affidavit is made by “Joseph F. Bennett, of the firm of Bennett Brothers & Co.,” and states that the defendant is indebted to said Bennett Brothers & Co.

In the writ the plaintiffs are named as Cornelius Bennett, Joseph F. Bennett and Henry Lisinsky.

The court below ruled and this court has decided that the writ was invalid because the plaintiffs mentioned in the aforesaid writ do not appear to have been the same persons as those named as plaintiffs in the affidavit.

In the affidavit the name is Bennett Brothers & Co., Joseph F. Bennett being one of said firm; in the writ no firm is mentioned at all, but the parties suing are separately named, as Cornelius Bennett, Joseph F. Bennett and Henry Lisinsky.

It is held that we cannot presume that these are the same, and that the affidavit cannot be cured by information obtained from other sources.

This might be so if the writ were based on the affidavit alone, as under the act of 1855; but in this instance, it appears to me, that the writ is based on both the petition and the affidavit, ' The petition is first named in the law, and in fact is filed as the foundation of the suit. I think, then, that we have a right to examine it to ascertain whether the parties named in the affidavit are the same as those named in the writ.

The cases cited by counsel, from Arkansas: Cheadle v. Riddle, 6 Ark., 480, and Kinney v. Heald, 17 Ark., 397, go far beyond this, in overlooking irregularities, but I think they should not be followed to their full extent. But I think the true rule is laid down in Drake on Attachment, sec. 93, when it says that if certain matters “ appear by the record ” it is not essential that they should have been stated in the affidavit. The precise case there cited is, that where it is required that the affidavit be made by a party to the suit, the fact that he is a party may appear by the record without being set up in the affidavit.

In the case before us, if we have recourse to the petition we find it distinctly stated therein that Cornelius Bennett, Joseph F. Bennett and Henry Lisinsky constituted the firm of Bennett Brothers & Co., and so all difficulty in connecting the affidavit and writ ceases. It appears while the plaintiffs were differently stated, yet they were in fact identically the same. Believing that under the circumstances the court had a right to examine this petition, which constitutes part of the record, and specially as it is one of the papers on which the writ was issued, and made necessary for that purpose by the law, I think that the writ of attachment was good, and that the motion to quash the attachment proceedings should have been denied. '