Osterstock v. Lent

¶1This action was commenced by attachment issued and signed by the justice, upon an affidavit showing the defendant to be a non-resident, and that he was indebted to the plaintiff upon contract.

¶2The objections of the defendant to the mode of commencing the action having been over-ruled, the defendant’s counsel did not make any further defence, and judgment by default was entered against him.

¶3The statute in regard to assistant justices’ courts (Laws of 1820, 3), directs that the clerk shall make out and sign all process.

¶4*142This statute is applicable to the present district courts, and if the attachment in the case is the commencement of the action, then it should have been signed in the mode prescribed by law.

¶5By section 33 of the non-imprisonment act, it is provided that if the defendant resides out of the county, he may be proceeded against by summons or attachment. This is the mode of commencing the action. We have not been referred to any provision of the statute altering the law above referred to, nor have we been able to find any, allowing the justice to sign the process.

¶6When the proceeding is by attachment, the application should be made to the court, and on the attachment being ordered, the clerk should sign and issue it.

¶7There is nothing in the act of 1851 requiring such attachment to be made under seal. The case referred to by the defendant’s counsel* related to the Marine Court, and was governed by the statute especially applicable to that court.

¶8The cause of action was sufficiently set out, but the first objection is fatal to the jurisdiction of the court, and renders a reversal of the judgment necessary, sts.