The affidavit mentioned in the preceding paragraph is one of the prime essentials in validating the attachment proceedings. Not only must it be filed, but it must be just what the statute says it must be. It must also set forth, definitely and precisely, one or more of the grounds of the statute authorizing the writ of attachment. Indeed, if all the other proceedings under the attachment statute are regular, and the real estate is sold by order of court, and the purchaser has paid the full value for it, he will not get a good title to the land if this affidavit has not been filed in the case, or having been filed, it fails to show all the four requirements of the statute as above indicated. In such a case, a court of last resort, in a jurisdiction having a statute identical, to the statute of this State, on this subject, well said: "No affidavit was filed, and unless the petition must be looked to to supply this important omission, the writ was void, and no jurisdiction was acquired by the seizure of the land under it; and if no valid seizure was made, no service of publication could be made. We think that the fact that there was not the requisite affidavit to authorize the issuing of the attachment, renders all subsequent proceedings under it void.' 997 594. As to affidavit for attachment and service by publication being sufficient, see Raymond v. Nix, 5 Okla. 666, 49 Pac. 1,110. An affidavit in the language of the statute is sufficient. Thwing v. Humphrey, 13 Okla. 646, 75 Pac. 1,127; Thwing v. Winkler, 13 Okla. 643, 75 Pac. 1,126; Rayburn v. Bracket, 2 Kan. 227; Hilton v. Ross, 2 N. W. (Neb.) 862; Steele v. Dodd, 16 N. W. 1,909; Tessier V. Lockwood, 24 N. W. (Neb.) 934. The affidavit may be amended. Dunn v. Drummond, 4 Okla. 461, 51 Pac. 655; Dunn v. Clauch, 13 Okla. 577, 76 Pac. 143; Same v. Same, 15 Okla. 27, 78 Pac. 388; Coyler v. Nix, 7 Okla. 267, 54 Pac. 469; Reister v. Laud, 14 Okla. 34, 76 Pac. 156; Tracy v. Gun, 29 Kan. 509; Cassity v. Fleak, 20 Kan. 54. It is error to refuse to allow amendments. Wells v. Danford, 28 Kan. 487; Swearinger v. Howser, 37 Kan. 126, 14 Pac. 436. Plaintiff's attor ney of record cannot take the verification. Toodle v. Smith, 34 Kan. 27, 7 Pac. 577. The affidavit may be aided by the allegations of the petition. Hart v. Barnes, 40 N. W. (Neb.) 322. The filing of the affidavit is jurisdictional. 7 Endel v. Leibrock, 33 O. S. 267. 8 The grounds for the attachment may be set forth in the affidavit therefor, in the language of the statute, without a more particular statement of the facts to be alleged; but where the affidavit does not follow the precise language of the statute, it will be sufficient for the attachment affidavit, if it contains language fully equivalent, or clearly shows the grounds specific or intended." Sec. 291. The grounds for attachment. The plaintiff in a civil action for the recovery of money, may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon the grounds herein stated: 1. When the defendant, or one of several defendants, is a foreign corporation, or nonresident of this State; (but no order of attachment shall be issued on the ground, or grounds, in this clause stated, for any claim other than a debt or demand arising upon contract, judgment or decree, unless the cause of action arose wholly within the limits of this State, which fact must be established on the trial). 2. When the defendant, or one of several defendants, has absconded with the intention to defraud his creditors; or, 3. Has left the county of his residence to avoid the service of summons; or, 4. So conceals himself that summons cannot be served upon him; or, 5. Is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors; or, 6. Is about to convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors; or, 3 Emmet v. Yeigh, 12 O. S. 335. 9 Treaser v. Young, 31 O. S. 57. It is not sufficient for the affidavit to state that affiant has reasons to believe and does believe the facts alleged therein. Campbell v. Hill, 1 Kan. 54. 7. Has property or rights in action which he conceals; or, 8. Has assigned, removed or disposed of, or is about to dispose of his property, or a part thereof, with the intent to defraud, hinder or delay his creditors; or, 9. Fraudulently contracted the debt or fraudulently incurred the liability or obligation for which the suit is about to be, or has been brought; or, 10. Where the damages for which the action is brought are for injuries arising from the commission of some felony or misdemeanor, or the seduction of any female; or, 11. When the debtor has failed to pay the price or value of any article or thing delivered, which by contract, he was bound to pay upon delivery.1 10 Sec. 292. When the defendant, or one of several defendants, are nonresidents of the State. One of the grounds authorizing the writ of attachment is when the defendant, or one of several defendants, is a nonresident of this State. For a construction of the term "resident," or "residence," as used in this statute, we cannot turn to the definition of the word "residence" as used with reference to the qualifications of voters. In such case, the word "residence" is used synonymously with "domicile." When the word "residence" is applied to the attachment laws of this State, it is not controvertible with "domicile." This is upon the theory that a party's residence may be in one place and his domicile in another. It is the actual residence of the debtor, not his domicile, that determines his status in an attachment proceeding begun in the county where his property is situated; and if he has no abode or home within the State where process may be served on him, his property is subject to attachment, notwithstanding he may not have acquired a residence elsewhere.11 10 Snyder, 5,701; Wilson, 4,365; Kansas, 4,624 (1901), identical; Nebraska, 1,171 (1907), similar; Ohio Gen. Code, Sec. 11,819 (1910), similar. 11 Thompson v. Ogden, 3 C. C., N.S. (Ohio), 51. When a party left a State with his family, for another State, with the intention of returning, in case he could compromise with his creditors there, or to remain if he could not do so, and get employment, neither of which happened, and in the meantime, the real estate in the State which he had left was seized by writ of attachment, and he shortly afterwards left for a third State, it was held that these facts did not constitute him a nonresident of the first State, the court holding that mere nonresidence for any length of time, unless aided by some unequivocal act showing an intention not to return, will not cause loss of domicile in the first State.12 An absence from one's home for years, where the intention is not to remain, if, in the meanwhile the intention is not destroyed by some unequivocal act, signifying the purpose to change the domicile, does not destroy the right to claim the former residence as if it had never been interrupted by the parties.13 An attachment may issue on the grounds of nonresidency, when the defendant is a partnership, of which all the members reside out of the State, the partnership being formed for the purpose of carrying on business here. And in an attachment against the property of such nonresident firm, it may be sued in its company name, and service may be had by leaving a copy of the summons, with the indorsements thereon, in accordance with the statutes in such case.1 14 The attachment may be based both on the grounds of nonresidency and the defendant so concealing himself that summons cannot be served on him.15 And an attachment writ brought against a nonresident of the State will not be discharged by the defendant becoming a resident after the writ is issued.16 A resident of the State may become a nonresident 12 Smith v. Dalton, 1 C. S. C. R. (Ohio), 150. 13 Egan v. Lumsden, 2 Disney (Ohio), 168. 14 Byers v. Schlupe, 51 O. S. 300. 15 Raymond v. Nix, 5 Okla. 656, 49 Pac. 110. 16 Larmer v. Kelly, 10 Kan. 299. by leaving the State with the intention of becoming a nonresident, and he does not become a nonresident until he is entirely out of the State." Where the real estate of a nonresident is attached upon the ground of nonresidency, no summons need issue for him in the action.18 It has been held that attachment will lie for a tort, the ground for the affidavit being nonresidency.19 Sec. 293. Has absconded with intent to defraud his cred itors. It is made a ground of attachment for a defendant to abscond with intent to defraud his creditors. Under this provision of the statute, it was held the ground authorized an attachment on partnership property, for one partner to abscond, and the other to dispose of part of the partnership property and to continue to dispose of the rest of it. And an attachment may be laid on the firm property where one partner avoids the service of process by absconding, and the copartner remaining in possession of the stock of goods belonging to the firm, and said firm is insolvent.20 A citizen of this State has the right to move his property therefrom to another State, and it will not authorize an attachment. It is only when he absconds with intent to defraud that it is allowed.21 And when he hides or conceals himself, or absents himself clandestinely, then he can be said to abscond.22 17 Ballinger v. Lautier, 15 Kan. 608; Swanly v. Hutchin, 13 N. W. (Neb.) 282; Johnson v. May, 68 N. W. (Neb.) 1,032. 18 Westcott v. Archer, 11 N. W. (Neb.) 495; Grebe v. Jones, 18 N. W. 81; Bannister v. Carroll, 43 Kan. 64, 22 Pac. 1,012. Where real estate is attached and sold, the proceeding is not subject to collateral attack. Brown v. Bose, 75 N. W. 536, 70 Am. St. 379. 19 Kid v. Seifert, 11 Okla. 32, 65 Pac. 931. 20 Sellen v. Chreshfeld, 1 Hand. (Ohio), 87. 21 Dunn v. Claunch, 13 Okla. 517, 76 Pac. 143; see, also, Gundy v. Jolly, 53 N. W. (Neb.) 658. 22 Gundy v. Jolly, 47 Am. St. (Neb.) 460. |