Commercial Corp. v. Krueger , 123 Or. 534 ( 1927 )

Appeal by the garnishee from a judgment against him. January 10, 1925, the plaintiff filed his complaint, an affidavit and undertaking for an attachment; the necessary writs were issued and served upon the garnishee. The affidavit commences: "I, C.A. Boyle, being first duly sworn"; it is signed, "The Commercial Corporation, by C.A. Boyle, Secretary." The writ of attachment is in proper form. The copy left with the defendant bore no imprint showing that the original bears the seal of the court; however, it concludes in the usual form that the clerk has attached his signature and the seal of the Circuit Court. The garnishee made no disclosure. February 9th, plaintiff filed allegations and interrogatories; an order was made that they be served upon the garnishee. The latter entered a special appearance and moved that the court set aside its order and quash the writ for the reason that "the necessary and proper affidavit, or any lawful affidavit was not filed herein"; the motion was denied. Later the garnishee filed his answer which denied the sufficiency of the affidavit and pointed out the matters pertaining thereto which we have already referred to. Further, it alleged that the copy of the writ left with the garnishee contained no statement or imprint showing that the original bore the proper seal. Thereupon the plaintiff moved for judgment on the pleadings, which was allowed. The garnishee appeals. AFFIRMED. Affidavits similar to that before us have been frequently upheld. In Silver Peak Mines v. Hanchett, 80 Fed. 990, the court in referring to an affidavit somewhat similar to the document before us tersely said:

"The point that is raised is purely technical in its character and it goes simply to the form, and not the substance, of the affidavit. The true interpretation to be given to that affidavit is that it is the affidavit of M.A. Murphy, who is the attorney for the corporation. It is not susceptible, in my judgment, of any other judicial interpretation."

Similarly we believe that the document before us is the affidavit of C.A. Boyle, secretary of the corporation. Other holdings to similar effect are, Hotaling Co. v. Brogan,12 Cal. App. 500 (107 P. 711); Moline etc. Co. v. Curtis,38 Neb. 520 (57 N.W. 161); Thedin v. First Nat. Bank of Savage,67 Mont. 65 (214 P. 956); we hold the affidavit sufficient.

Both reason and authority uphold the sufficiency of the copy of the writ served upon the garnishee. The seal's only function is to evidence the validity of the writ, but it is not a part of the writ; hence it is not necessary to refer to it in the copy served: Lyon v. Baldwin, 194 Mich. 118 (160 N.W. 428, L.R.A. 1917C, 148, annotated); Cameron v. Wheeler, 6 Q.B.U.C. 355;Sietwan v. Goeckner, 127 Ill. App. 67; Kelley v. Mason,4 Ind. 618; Hughes v. Osburn, 42 Ind. 450; Elramy v.Abeyounis, 189 N.C. 278 (126 S.E. 743); Peters v.Crittenden, 8 Tex. 131; Herold v. Coates, 88 Neb. 487 (129 N.W. 998). See, also, Watson v. Morton, 18 Abb. Pr. (N.Y.) 138; 32 Cyc. 460; 21 R.C.L., Process, § 72.

Affirmed.

RAND, C.J., and COSHOW and McBRIDE, JJ., concur.