The plea in abatement here in question does not put in issue the ground of attachment alleged in the affidavit, but only the truth of the matter specially required by Section 6178, Code, when both plaintiff and defendant are nonresidents.
Section 6173, Code, specifies the grounds which will support an attachment, one is when defendant resides out of the state. It is certainly true that the time to which the affidavit in that respect is confined is the date of the affidavit. Any change of that status would not affect the attachment writ.
But the special affidavit required in Section 6178, supra, is not a ground for the attachment. That must be made in addition to the existence of the ground in Section 6173, supra, that defendant resides out of the state. The special affidavit does not seem to be necessary when the ground is some other specified in that section of the code.
The falsity of the matter thus specially required is but an impediment in the way of the prosecution of the attachment suit authorized and justified in every other respect and in no manner here controverted. That is to say that the existence of sufficient property in Colorado merely suspends the right to an attachment by a nonresident, against a resident of Colorado in this state until that impediment is removed. When that event occurs there is then no impediment. Our holding is in substance that when through the voluntary act or omission of defendant, or through some act not chargeable to plaintiff that impediment is swept away before the trial of the plea which puts it in issue, defendant is not in position to rely on it as a reason for discontinuing the prosecution of a suit otherwise available. *Page 119
This requirement first made its appearance in the act of December 25, 1824 (Acts of 1824 of Alabama, p. 6). In Section 2 of it, the requirement for the special affidavit is made as is now contained in Section 6178, supra.
We have searched for a similar requirement in other jurisdictions in the hope that such a question has been there considered. The states generally do not seem to have requirement similar to ours. See 6 C.J. 39; 7 C.J.S. 209, Attachment, § 20, subd. b; 4 Amer.Juris. 632, § 124.
But sometimes restrictions are placed on nonresident plaintiffs in attachment. But there are none apparently which resembles our statute enough to find a precedent in their decisions.
So that we must revert to reason and the purpose of the requirement and give it effect justly. And upon that basis we have here analyzed it and reached the conclusion announced.
Application for rehearing overruled.
GARDNER, C. J., and THOMAS and BROWN, JJ., concur.