Saunders v. Cavett , 38 Ala. 51 ( 1861 )

STONE, J.

The answers of the defendants fully and emphatically negative all fraud charged upon them, in the matter of the sale to, and purchase by them, of the goods and effects which-were affected by the interlocutory injunction. The gravamen of. the complainant’s bill — the peculiar ground on which he rests his right to have these goods and effects seized, and the defendants restrained from disposing of them — is the alleged fraud in the sale from Cavett & Saunders to the Conners. This being denied, the injunction was rightly, dissolved for that reason, if for no other.

[2.] But it is our duty to dispose of the questions raised on the attachment and its dissolution. •

The present bill was filed under, the Code, chapter 6, title 4, part 3, page 52.9,- and the enlargement of the remedy therein provided, by the act approved February 15th, 1856. — Pamphlet Acts,, 54.. Section 2954. of the Code provides, that “writs of ne exeat, and equitable attachments, may issue on- equitable debts and demands, under the same circumstances,, and courts must observe in the issue of such writs, the provisions of courts of law in relation to bail and attachment writs, except so far as the same are altered by this Code.” Equitable attachments^ had been.provided for by the act of 1846, (Pamphlet Acts,. 17,) and'many of the provisions of that statute were continued of force by section 295.6 of the Code.

By the act of 1856 it is declared, “that a writ of attach.ment may be issued out of the court of chancery, on the application of any surety, endorser, accommodation drawer, acceptor, or maker, of any bond, bill, note, or other contract in writing, against the principal debtor, to be levied an the, property or effects of the defendant, whether held by a legal or equitable title, whenever such surety, endorser, acceptor, maker, or drawer, could sue out an attachment at law, if he was a creditor of such principal debtor';” and that “the provisions of the statutes now'in force, in reference to attachments at law, must be observed in the issuance of such attachments.”

The complainant in'this bill alleges, that he is an accommodation drawer for Cavett & Saunders, — the debt not paid at the filing of the bill; and'hence, the entire equity of his bill rests on the act of 1S56, copied above, and, section 2954 of the Code.

This record contains no formal order dissolving the attachment; but the chancellor, and the counsel on both sides of the controversy, treat the case as if the attachment had been dissolved. We will also' treat the question in the same light, and proceed to consider the appeal on that hypothesis. — See act of 1858, § 6 ; Pamphlet Acts, 230.

It will observed,-that section 2954 of the Code declares that, in issuing equitable attachments, the courts must observe the provisions of courts of laio in relation to bail and attachment writs. And the act of 1S56 confers the right to issue attachments out of chancery, only when such surety, endorser, acceptor, matter, or drawer, could sue out an attachment at law, 'if he was a creditor of such principal debtor / further, that the provisions of 'the statutes now in force, in reference to attachments at law, must be observed in the issuance of such- attachments.

It is objected by appellees,"that in suing out the present attachment, the complainant did not observe the provisions of the statute now in force in reference to attachments at law. The particular ground of objection is this : The statute which authorizes the issuance of an attachment at law, 'in favor of a creditor, against a debtor who lias, as is charged in this bill, fraudulently disposed of Ms property, requires the plaintiff to make oath “that the attachment is not sued out for the purpose of vexing or harassing the defendant.” ' Neither the bill, nor the affidavit -in this 'case, contabas that averment ; and for this omission it is contended, that the chancellor rightly dissolved the attachment.

We agree with'the chancellor,, that the averment copied above was material. It was, at an early "day, made a part, of the oath to be taken in suing out attachments at law, and has been steadfastly preserved’through all the changing phases of our legislation on that subject. We discover in this language a nice legislative policy pin this, that notwithstanding a creditor may bring himself within the letter of the statute, still his conscience-shall purge itself of. allpurpose to vex or harass, before -he ■ shall he .armed with this extraordinary process oí1 the law. Kindred- questions under attachment laws have been considered, and have received the same solution which we give to this. — Thompson v. Raymon, 7 How. Miss. 186 ; Page v. Page, 2 Sm. & Mar. 266 ; Hopkins v. Crissom, 26 Miss. 143 ; Taylor v. Smith, 17 B. Mon. 536.

The case of Conklin v. Harris, (5 Ala. 213,) is not opposed to this view. Tllo attachment in'-that case was sued cut against a non-resident débtor; and it is no part of the affidavit for an attachment on that ground, that the ordinary process of laxo cm not he • served on the defendant.—Clay’s Digest, 54, § 3.

[3.] We do not understand the appellant as seriously controverting this proposition. He contends, however, that the chancellor should not- have dissolved the attachment, -without first giving him an opportunity -to perfect "the ground of his attachment by an amendment. In support of this proposition, he relies on Calhoun v. Cozzens, 3 Ala. 498, 502. The case cited certainly sustains the argument, unless a- distinction can be taken between that case and this. We do not propose now to consider whether that case is reconcilable with a well settled rule of chancery • Saw — namely, .that when a-bill,-on which-an inter! ocutoyy injunction has been obtained, is amended, such amendment?is at the cost of the injunction, unless the court allowing, the amendment make an order for the continuance of the-injunction. — See 1 Nan. Ch. Pr. 483-7. But there is ant organic distinction between that case and this.. The bill: in the case of Calhoun v. Cozzens made a case for the exercise of original equity jurisdiction ;, namely, a proceeding; .by a married woman, haying no trustee, to protect her separate estate from sale under an execution, against her husband.. The equity of the bill consisted, not in the necessity for an injunction, but in the civil disability of the-wife to maintain am action, at law. Her rights, under the circumstances, were maintainable alone in equity ; for she-could sue nowhere else. The injunction was simply the-means of giving; effect to the- decree to be rendered, by-arresting the erroneous proceedings of, the law court. In-: this case, it is the attachment, properly;issued, which gives-the plaintiff a standing in court. Without, that process, he has no cause of action before any tribunal. — Wiggins v. Armstrong, 2 Johns. Ch. 144; Saunders v. Watson, 14 Ala. 198; Buford v. Francisco, 3 Dana, 68; Moran v. Dawes, Hop. Ch. 365.

In the case of McGown v. Sprague, (23 Ala. 524,) the question was-whether the bill-conformed to the act of 1846,, as an equitable attachment., This court’said, “Neither the affidavit, nor the bond,,seems to have been filed according to the requisitions of the statute; and, indeed, it does not-seem to have been intended- to be, at the filing of the bill, a proceeding under the* statute. When proceedings of this nature are authorized; only by statute, the uniform-, decisions of this court are, that such proceedings, when* taken, must be substantially conformable to the directions-, of;the statute.”’

In the case of McKenzie v. Bently, (30 Ala. 142,) the affif.. davit and hill were sufficient, but the attachment was issued;' without any previous order or fiat therefor. This court-held, that the proceedings were void, and that the court of' chancery did not, and nev.er could, have any authority to, render any decree in favor of complainants under that bill-See, also, Kirksey v. Fike, 27 Ala. 383; Walthall v. Rives, 34 Ala. 91; Smith v. Moore, 35 Ala. 76.

The result of our former decisions is, tbat although amendments of chancery joleadings are much encouraged in this State, yet, when the equity of a bill depends on a statutory attachment, if tbe sworn averments of tbe bill, or the affidavit, or the fiat or order, be substantially insufficient to uphold the jurisdiction, then the chancery court has not, and never can have, authority to render the decree prayed! for; and no amendment can retroact, so as to legalize andi save an attachment previously issued without proper authority. — See McReynolds v. Neal, 8 Humph. 12.

Tbe decree of tbe chancellor, in both aspects, is. affirmed..