(dissenting). — I. Although I concurred in the opinion in» this case, as is therein stated. I have become satisfied by further examination and reflection, that I erred in so doing, and I shall make this the occasion for changing my front in respect thereto, and for stating the reasons which have induced the change of conviction.
*124It will be observed from the statement of the case that the affidavit for attachment and the certificate of the clerk, appended to the plaintiff’s petition, are unexceptionable, except that the name of the affiant was not signed to the affidavit, nor that of the clerk to his certificate. It was held by us that these omissions were fatal to the proceedings. As was said by Judge Sherwood in the dissenting opinion in Hargadine v. VanHorn, 72 Mo. 370, that the component parts of an affidavit are: First, the written oath ; second, the signature of the deponent, and, third, the attestation of the administering of the oath by the officer, who did administer it. According to this definition, if either one of these component parts be lacking, the affidavit is incomplete. In this case, the first part of the affidavit, the written oath, is not lacking, but the other two parts thereof — the signature of the affiant and the attestation of the clerk, are wanting.
The question now is, whether this triparted affidavit for the attachment, with two specified parts thereof omitted, was a proper subject of amendment in the circuit court upon the application of the plaintiff for that purpose. It seems to me that the’ action of the court in allowing the amendment to be made was fully authorized by the statute — section 445 — which provides that attachments in courts of récord may be dissolved on motion made on behalf of the defendant at any time before final judgment in the following cases : First. “When the affidavit upon which the same is founded shall be adjudged insufficient; but no such attachment shall be dissolved, in such cause if the plaintiff file a good and sufficient affidavit to be approved by the court in such time and in such manner as the court shall direct; such affidavit may embrace the same ground of attachment as set forth in the previous affidavit, or any other grounds, or both at the option of the affiant.” This statute is remedial, and *125should be liberally construed. Tevis v. Hughes, 10 Mo. 241.
En passant, it may be remarked, that the statutes authorizing garnishments apply to actions by attachments. Middleton v. Frame, 21 Mo. 412. Now, if there was appended to the plaintiff’s petition, an affidavit for an attachment, though insufficient — lacking in two essential parts — could the court, in the face of the statutory interdict, refuse to permit “the plaintiff to file a good and sufficient affidavit?” Musgrove v. Mott, 90 Mo. 107.
In Norton v. Flake, Adm’r, 36 Mo. App. 698, it was said, “the defendant’s contention is, that the first affidavit being insufficient to confer jurisdiction, that it could not be amended. It may be well questioned whether .the first branch of this contention is true, and, if so, whether or not the broad and comprehensive provisions of the statute do not authorize in express terms the exercise of the power of amendment in such case. The statute has made no distinction as to the power of amendment of affidavits for attachment.” “In State ex rel. Crain v. Lyon, 51 Mo. 114, it was held that a justice of the peace, who has under the statute precisely the samé power with respect to amendments of affidavits for attachment as courts of record, may, after judgment in an attachment suit, allow an amendment of an affidavit to be made so as to authorize the seizure of property otherwise exempt.” As was said in Norton v. Flake, Adm’r, supra, “the question of the sufficiency of affidavits to confer jurisdiction has generally arisen in proceedings collaterally attacking judgments rendered thereon, and in such cases the question is sometimes very close and of great nicety, but in cases like this, when the proceeding is an' original one, no reason appears why it should be so narrowly scanned where it is simply sought to amend it. The object of the law, no doubt, is in cases where there is a defect of *126jurisdiction on account of some departure from the direction of the statute in the proceeding to allow an amendment and thus perfect the jurisdiction.” The rule in this state now seems to be that the power of amendment cannot be invoked when there is absolutely nothing conferring jurisdiction, but only when it is defectively acquired. Burnett v. McCluey, 92 Mo. 230.
Again in respect to the affidavit it may be remarked that the statute nowhere requires it to be signed by the affiant, and in the absence of such requirement it would not be defective on account of not being signed. If the proper affidavit for attachment required by the statute is accompanied by the certificate of the officers before whom it is made, then it is complete. It need not be signed by the affiant. This is non-essential. Smith v. Benton, 15 Mo. 371; Soswell v. The Church, 46 Mo. 276; Crum v. Elliston, 33 Mo. App. 591.
In Hargadine v. Vanhorn, 72 Mo. 370 (see dissenting opinion of Sherwood and Norton, JJ.) it is said: “Under the statute an affidavit performs the same office in an action by attachment, as it does in that of replevin.” The analogy is indisputable, and in the latter action we have held that an unsigned affidavit may be amended and that no question of jurisdiction arises in permitting such omission to be supplied by the amendment. Crum v. Elliston, supra. So that an unsigned affidavit is not defective for that reason, or if it is, then it is amendable.
Now then the affidavit in question is insufficient in only one essential particular and that is as to the signature of the attesting officer, before whom it was made, as to his certificate. His certificate was complete in every respect. Now in Bergesh v. Keivil, 19 Mo. 127, which was an action of replevin where the affidavit required by the statute was signed by the plaintiff but was without the jurat — the certificate of the officer *127before whom made, it is said, that under such circumstances the trial court might have permitted the petition to be verified nunc pro tunc. I am, therefore, constrained to think that the want of a jurat to the affidavit was not such an insufficiency as prevented the court from acquiring jurisdiction of the res. At most the jurisdiction was only defective, and was perfected by the filing of the amended affidavit which was complete in all its parts.
Whatever there is in Bray v. McCluey, 55 Mo. 128, and Burnett v. McCluey, 78 Mo. 676, that may be thought to conflict with the views herein expressed is disapproved of by a unanimous court in Burnett v. McCluey, 92 Mo. 230. In Owens v. Johns, 59 Mo. 89, there was no written oath at all, no affidavit required by the statute. There was, however, the j tor at of the clerk appended to the petition. It was held that there was nothing to amend ; while this case decides nothing adversely to the views I have expressed, it may be well questioned whether the rulings there have not been touched upon by the provisions of the statute and some of the prior and subsequently decided cases of that court. It seems to me that if full force is given to the language employed in the opinion in that case, that it will be found to practically contravene the express provisions of the attachment statute, section 445, and the general statutory provisions of allowing amendments. In any view which I have been able to take of this case, I have been unable to discover that any error was committed by the circuit court in permitting an amended affidavit to be filed by the plaintiff.
II. But there is still another ground which may be urged in support of the action of the trial court, and which I think is impregnable. The sufficient affidavit filed by the plaintiff in the first instance stated a perfect statutory ground for an attachment. Now, if we ignore the existence of the second, or amended, affidavit, *128and treat the first as the only one before the court, what effect then should be given to it ? The defendant filed his plea in abatement thereto and thus waived the exceptions to it. Henderson v. Drace, 30 Mo. 358. The affidavit stated the constitutive facts required by the statute, and the minor defects complained of, I think, were, upon the general principle governing pleadings under our statute, waived by the plea in abatement, which was filed thereto. Hill v. Morris, 19 Mo. App. 256; Silver v. Railroad, 21 Mo. App. 5; Bradley v. Ins. Co., 28 Mo. App. 7; Scovill v. Glasner, 79 Mo. 452. There is no ground for disturbing the judgment of the circuit court, and the motion for a rehearing ought, in my opinion, for the reasons already stated, to be sustained.