McLeod v. Hyman

Opinion by

Mr. Chief Justice Moschziskee,

The order dissolving the foreign attachment, here appealed from, is well sustained in the opinion of the learned court below, which we adopt and direct to be published in connection herewith.

The points argued before us, not covered by the opinion just adopted, need but little discussion. In answer to the argument that, as defendant appeared by counsel, therefore, all parties are in court and the purpose of the attachment has been served, it is sufficient to say there is nothing upon the record to indicate any such appearance, either formally or informally. The contention that the statement in the docket entries, “June 13, 1921, Buie discharged by agreement,” tied the hands of the court below so that it had no legal right to vacate such “discharge” cannot be sustained. There is nothing upon the record to show what is meant by the word “agreement” in the original docket entry, whether the alleged agreement was made in open court or otherwise, and, if not made in the former way, all such agreements have to be in writing, under the rules of the court below. Moreover, while the assent of the court to agreements of counsel, affecting the proceedings, is assumed until its dissent therefrom is indicated, yet, of course, the court can always refuse to sanction such agreements, when right and justice so require; and, to reach these ends, it has the power to change what appears upon the record of a prior ruling, particularly where, as here, it is done within the term. Finally, it remains to say only that the words in the affidavit of cause of action, that “the cotton was tendered in pursuance of said contract,” so largely depended on by appellants to show the adequacy of the affidavit, are insufficient for that purpose, because they merely represent the conclusion of the affiant, and therefore offend the rule, stated with the citation of an authority by the court below, that such affidavits “must not be ambiguous or dependent upon conjecture or inference.”

The order appealed from is affirmed.