Zinn v. Dzialynski

Citations

• 13 Fla. 597

Syllabus

<p>1. An affidavit made for the purpose of procuring an attachment against the property of a debtor, stated that “ the defendant is justly indebted to the plaintiffs in the sum of $1,829.95, which amount is now actually due; and that the affiant has reason to believe that the defendant will fraudulently part with his property before judgment can be recovered against him.” The defendant, traversing this affidavit for the purpose of moving to dissolve the attachment, says that the affidavit made in behalf of the plaintiffs “ is untrue, wherein it alleges that the defendant is indebted to the plaintiffs in the sum of $1,829.95, and that the same is actually due; and that said affidavit is untrue wherein it alleges that the affiant has reason to believe that* the defendant will fraudulently part with his property before judgment can be recovered against him.” On trial of this issue before a jury, the Court charged that “ the plaintiff must prove the amount named in the affidavit, $1,829.95, is actually due, and that he had reason to believe the defendant would fraudulently part with his property before judgment can be recovered against him.” Held: That the words “ actually due ” referred to the question whether the amount of indebtedness had actually become due and payable at the time, and not to the precise amount of the indebtedness; and if it was proved that the amount actually due was less than the amount stated, but sufficient to give the Court jurisdiction, this is substantial affirmative proof of that branch of the issue, and the charge was too strict.</p> <p>2. When an agent of the plaintiffs made an affidavit for the purpose of procuring a writ of attachment, and upon a traverse of the affidavit it was shown, and not denied, that the statement of the amount due was based upon the admission of the defendant to the agent, the defendant is estopped from insisting upon a motion to dissolve the'writ of attachment, that a sum less than that so admitted and stated in