Herch v. Lazzarini

<p>Abstract of the Decision.</p> <p>1. Attachment, § 98*—when affidavit not void. A defective affidavit for attachment which is not objected to in the lower court, if amendable in such court, is not void.</p> <p>2. Attachment, § 105*—when affidavit for attachment cannot he questioned on appeal. The sufficiency of an affidavit for attachment cannot be questioned for the first time in the Appellate Court.</p> <p>3. Judgment, § 142*—when affidavit to vacate insufficient. It is not error for the court to overrule a motion to vacate and set aside a judgment and for leave to defend upon the merits when the affidavit in support of the same fails to state any fact in support of the motion which should have moved the court to grant the same.</p> <p>4. Judgment, § 135*—when second motion to vacate properly denied. A party to an action cannot make a second motion to vacate and set aside a judgment when the matters set forth in his affidavit in support of such motion were all within his knowledge at the time he made his affidavit in support of his first motion to have such judgment vacated and set aside.</p> <p>5. Appeal and errob, § 1319*—when evidence presumed sufficient. In the absence of a certificate by the trial judge that the bill of exceptions contains all the evidence offered and received upon the hearing of certain motions of the defendant, the presumption may properly be indulged, in support of the action of the court that the court had before it other and sufficient evidence, such as the oral testimony of witnesses.</p> <p>6. Garnishment, § 105*—what is proper form of judgment against garnishee. A judgment in attachment in favor of the plaintiff against the garnishee is improper; such judgment should be for the plaintiff against the garnishee for the use of the plaintiff.</p> <p>7. Appeal and erbob, § 1214*—when defendant cannot object to form of judgment against garnishee. A judgment in an attachment proceeding in favor of the plaintiff against the garnishee rather than in favor of the defendant against the garnishee for the use of the' plaintiff while improper cannot be assigned as error by the defendant.</p>