Page:North Dakota Reports (vol. 1).pdf/232

 the court made the following order: "It is hereby ordered that plaintiffs have leave to file this affidavit of Eben D. Jordan, Jr., made on the 18th day of December, 1888, in the office of the clerk of this court, as and for an additional affidavit for attachment, with the same force and effect as if filed with the original affidavit for attachment, filed December 27, 1887." To this order the defendant at the time duly entered his objections, which were overruled, and an exception saved. Immediately thereafter, plaintiffs’ motion for judgment on the pleadings was sustained; the court stating in the order for judgment that the motion was heard “on the complaint and affidavit for attachment made by H. F. Miller, attorney for plaintiffs, on the 27th day of December, A. D. 1887, and the affidavit for attachment made by Eben D. Jordan, Jr., on the 18th day of December, A. D. 1888, and filed by leave of court granted, and upon the answer of the defendant to the complaint, and upon the warrant of attachment and the entire record of the proceedings in said action, so far as they appear of record in this court.” To the judgment, exceptions were duly entered and saved. The errors here assigned are the action of the court in permitting the affidavit of Eben D. Jordan, Jr., to be filed, and in considering the same in passing upon the motion for judgment, and in rendering judgment for the amount denied to be due under the answer.

At the time the additional affidavit was permitted to be filed, the property of the appellant had already been in the custody of the law for more than a year. The warrants of attachment originally issued had completely fulfilled their purposes. No additional affidavit, and no number of affidavits, could add to the efficiency of the warrant. Hence the filing of such affidavit for the purposes alleged in the order could work no advantage to respondents, and no prejudice to appellant. We do not decide whether or not such additional affidavit was permissible under our statute, because, if permitting it to be filed was error, still it was without prejudice. But the court not only permitted it to be filed, but made it retroactive. The only effect of the order was not to aid the attachment, but to avoid the answer. Under our practice (Comp. Laws, § 5014) an action may be commenced on a claim not due, and an attachment issued against