CASES ARGUED AND DETERMINED. IN THE SUPREME COURT OF TENNESSEE FOR THE WESTERN DIVISION. JACKSON, APRIL TERM, 1904. GARDNER v. SWIFT & Co. (Jackson. April Term, 1904.) 1. ATTACHMENT. Sufficiency of affidavit for. An affidavit for an attachment reciting that the defendant was indebted to the plaintiff "in the sum of fifteen hundred dollars, debt and damages by open account," is not defective as leaving the amount sued for indefinite by the use of the term "damages," that word, from its connection, being construed to mean merely interest. 3. SAME. Levy and notice essential. Failure to record sufficient order does not vitiate. Case in judgment. In an attachment proceeding instituted in the circuit court against a nonresident, after the writ had been returned showing a levy upon the property of the defendant, the clerk of the court made a sufficient order of publication, which, however, was not entered on the rule docket or marked "filed" but, in its original form, delivered to the printer for publication and so published. It was contended by the defendant that the statutes authoriz113 Tenn-1 (1) Gardner v. Swift. ing attachment and publication had not been complied with, and, therefore, that the proceedings were void. Held: 1. The clerk of the court was authorized to issue the attachment. 2. That the levy of the attachment and the publication of a sufficient notice are the essential requirements of the statute, and this having been complied with, the failure of the clerk to file, or enter on the rule docket, the order of publication, did not vitiate the proceedings. Code cited and construed: 5283, 5284, 5937 (S.). Secs. 5221, 5234, 5278, 5279, 5281, 5282, Cases cited: Lyle v. Longley, 6 Bax., 286, 289, 292; Howard v. Jenkins, 5 Lea, 176; Allen v. Gilliland, 6 Lea, 521, 532. FROM MADISON. Appeal in error from the Circuit Court of Madison County.-LEVI S. WOODS, Judge. MALLORY & PIGFORD, for Gardner. HAYES & BIGGS, for Swift & Co. MR. JUSTICE NEIL delivered the opinion of the Court. This was an original attachment proceeding, instituted in the circuit court of Madison county under the following affidavit: "State of Tennessee, Madison county. Affidavit. Personally appeared before me, J. W. Blackman, clerk of the circuit court for said State and county, O. G. Gardner v. Swift. Gardner, with whom I am personally acquainted, who makes oath in due form of law that Swift & Company are indebted to him in the sum of fifteen hundred dollars debt and damages by open account, and that his claim is just, due and unpaid; and that said Swift & Company are nonresidents of the State of Tennessee, so that ordinary process of law cannot be served upon them, wherefore he prays that the writ of attachment issue. This November 9th, 1903. O. G. Gardner. "Sworn to and subscribed to before me this November —, 1903. T. C. Biggs, deputy clerk." The objection made to this is based on the word "damages." It is insisted that this word imports an indefinite sum claimed as compensation for a tort or wrong inflicted, and that the affidavit does not specify how much the damages are. We do not think there is anything in this objection. In the connection in which the word is used it means, merely, interest, and the amount sued for is $1,500 by open account, embracing the principal of the debt and the interest thereon. This is the true construction of the affidavit. The next objection made is that there appears no order of the clerk of the court directing publication to be made for the defendant as required by law, and that if any publication was made it was without authority. The substance of the matter, as shown by the record, is this: When the attachment writ was returned showing. a levy upon the property of the defendant, the clerk of the court made an order as follows: "O. G. Gardner v. Gardner v. Swift. ing attachment and publication had not been complied with, and, therefore, that the proceedings were void. Held: 1. The clerk of the court was authorized to issue the attachment. 2. That the levy of the attachment and the publication of a sufficient notice are the essential requirements of the statute, and this having been complied with, the failure of the clerk to file, or enter on the rule docket, the order of publication, did not vitiate the proceedings. Code cited and construed: Secs. 5221, 5234, 5278, 5279, 5281, 5282, 5283, 5284, 5937 (S.). Cases cited: Lyle v. Longley, 6 Bax., 286, 289, 292; Howard v. Jenkins, 5 Lea, 176; Allen v. Gilliland, 6 Lea, 521, 532. FROM MADISON. Appeal in error from the Circuit Court of Madison County.-LEVI S. WOODS, Judge. MALLORY & PIGFORD, for Gardner. HAYES & BIGGS, for Swift & Co. MR. JUSTICE NEIL delivered the opinion of the Court. This was an original attachment proceeding, instituted in the circuit court of Madison county under the following affidavit: "State of Tennessee, Madison county. Affidavit. Personally appeared before me, J. W. Blackman, clerk of the circuit court for said State and county, O. G. Gardner v. Swift. Gardner, with whom I am personally acquainted, who makes oath in due form of law that Swift & Company are indebted to him in the sum of fifteen hundred dollars debt and damages by open account, and that his claim is just, due and unpaid; and that said Swift & Company are nonresidents of the State of Tennessee, so that ordinary process of law cannot be served upon them, wherefore he prays that the writ of attachment issue. This November 9th, 1903. O. G. Gardner. "Sworn to and subscribed to before me this November 1903. T. C. Biggs, deputy clerk." The objection made to this is based on the word "damages." It is insisted that this word imports an indefinite sum claimed as compensation for a tort or wrong inflicted, and that the affidavit does not specify how much the damages are. We do not think there is anything in this objection. In the connection in which the word is used it means, merely, interest, and the amount sued for is $1,500 by open account, embracing the principal of the debt and the interest thereon. This is the true construction of the affidavit. The next objection made is that there appears no order of the clerk of the court directing publication to be made for the defendant as required by law, and that if any publication was made it was without authority. The substance of the matter, as shown by the record, is this: When the attachment writ was returned showing a levy upon the property of the defendant, the clerk of the court made an order as follows: "O. G. Gardner v. |