Dean v. Oppenheimer

Attachment on Obiéunal Process:" Act of 1864, ch. 806: Motion to Quash: Affidavit, — Form of. — In the affidavit required by the Act of 1864, ch. 806, as the ground-work of the attachment, the oath of the party making the affidavit that “lie Imows, or has good reason to believe, that E. O. had assigned,” &c., is insufficient, — the law requiring that, he should swear that “ th^plaintiff knows or believes,” &c.; and the variance from the requirements of the law is sufficient of itself to sustain a motion to quash the attachment. A Short Wote merely specifying an indebtedness, without stating the cause of action, is also insufficient on a motion to qruish.

Appeal from the Court of Common Pleas of Baltimore-city ; The proceeding out of which this appeal arises, was similar to that in the case of Howard, et al. vs. Oppenheimer, ante p. 350. On the 15th of June, 1864, the appellant caused to be issued from the Court of Common Pleas of Balti-Baltiinore city, against Ernest Oppenlieimer on attachment on original process, under the Act of 1864, ch. 306. The affidavit filed in the case with the account and bond, made by Charles Stinehcomb, cleric of the appellant, states: “that Ernest Oppenlieimer is bona fide indebted unto William A. Dean in the sum of four hundred and forty-two dollars and twenty-two cents over and above all discounts, and that the said Charles Slineheomb knows, or has good reason to believe, that the said Ernest Oppenlieimer has assigned, disposed of or concealed, or is about to assign, dispose of or conceal his properly, or some portion thereof, with intent to defraud his creditors; that the said Ernest Oppenlieimer fraudulently contracted the debt or incurred the obligation respecting which the action ivas brought; and that the said Ernest Oppeuheimer has, or is about to remove his property, or some portion thereof, out of this State, with intent to defraud his creditors.” On the same day the writ of attachment and usual writ of summons were issued, and the plaintiff filed his short note in the following words and form: “ William A. Dean vs. Ernest Oppenheimer. I Action in the Court of Common Pleas for Baltimore J city. This suit is instituted to recover the sum of four hundred and forty-two dollars and twenty-two cents, due and owing from the defendant to the plaintiff.” The short note was signed by the plaintiff’s attorneys. On the 16th of June, the attachment was returned — ■“ attached as per schedule,” and Isaac Oppenlieimer, the appellee, appeared as claimant of tlie property, and filed a motion to quash the attachment for the following reasons: 1st. Because Ernest, the defendant, had no interest in the property attached, which belonged to him, Isaac. 2nd. Because of defects apparent on the face of the papers. 3rd. Because of irregularity in the proceedings. 4th. Because of a failure to comply with the provisions of the attachment law. The case was set down for hearing; evidence was offered by the claimant to sustain the first of said reasons, and by the plaintiff to rebut the claimant’s evidence and sustain the levy. The points upon which this Court have rested its opinion render it unnecessary to state the facts of the case more particularly. The motion to quash was afterwards argued, and the Court (King, J.,) on the 9th of July, 1868, by its order of that date, sustained the motion and quashed the attachment, and the plaintiff appealed.