Wright v. Smith
Supreme Court of Alabama
Appeal from the Circuit Court of Macon. Tried before' the Hon. James E. Cobb. This action was brought by Mrs. B. D. Smith, against John P. Wright; was founded on the defendant’s promissory note for $150, dated the 5th January, 1877, and payable ten months after date; and was commenced by original attachment, issued on the 15th December, 1877, by the clerk of the Circuit Court of said county of Macon, on an affidavit made and subscribed by the plaintiff, on the 14th December,…
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Appeal from the Circuit Court of Macon. Tried before' the Hon. James E. Cobb. This action was brought by Mrs. B. D. Smith, against John P. Wright; was founded on the defendant’s promissory note for $150, dated the 5th January, 1877, and payable ten months after date; and was commenced by original attachment, issued on the 15th December, 1877, by the clerk of the Circuit Court of said county of Macon, on an affidavit made and subscribed by the plaintiff, on the 14th December, 1877, before the clerk of the Circuit Court of Bullock county. The defendant filed three pleas in abatement; the first…
1Opinion of the CourtBrickell, C. J.
An attachment, issuing without the affidavit required by law, is subject to abatement, on the plea of the defendant.—Jones v. Pope, 6 Ala. 154; Kirkman v. Patton, 19 Ala. 32. The statute is imperative, that the affidavit must be made, prior to, or cotemporaneous with the issue of the writ — it cannot be made subsequently, though, if erroneous in form, it may be amended. The definition of an' affidavit, approved by this court in Watts v. Womack, 44 Ala. 607, is, “an oath in writing, sworn before some judge or officer of a court, or other person legally authorized to administer it; a sworn…
2Cases cited4 opinions
- Matthews, Finley & Co. v. Sands & Co.Supreme Court of Alabama · 1856
- Watts v. WomackSupreme Court of Alabama · 1870
- Jones v. PopeSupreme Court of Alabama · 1844
- Kirkman v. PattonSupreme Court of Alabama · 1851
3Cited by6 opinions
- Nelson v. HammondsSupreme Court of Alabama · 1911
- Mann Lumber Co. v. Bailey Iron WorksSupreme Court of Alabama · 1908
- Birmingham Purchasing Co. v. ColvinSupreme Court of Alabama · 1929
- Mentzer v. EllisonColorado Court of Appeals · 1896
- First National Bank v. WillinghamSupreme Court of Florida · 1895
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