Daniels v. Solomon , 11 App. D.C. 163 ( 1897 )

Mr. Justice Shepakd

delivered the opinion of the Court:

1. Before considering the case on the errors assigned, certain preliminary questions raised by the appellee in support of the judgment must be disposed of. As we have seen, there was no objection taken to the leave to file the petition of intervention, and no demurrer thereto when filed. Now, for the first time, it is urged that the court had no power to permit or to entertain it.

Since a very early day, in Maryland, the right of one claiming title to, or an interest in, property that has been attached, to intervene in the cause and controvert the truth of the grounds of the attachment stated in the plaintiff’s affidavit, has been firmly established. Campbell v. Morris, 3 H. & McH. 552; Ranahan v. O’Neale, 3 G. & J. 298, 301; Stone v. Magruder, 10 G. & J. 383, 386; Carson v. White, 6 Gill, 17, 26; Clarke v. Meixsell, 29 Md. 221, 227. The same practice has obtained in the Supreme Court of the District of Columbia, and has been repeatedly sanctioned by that court in General Term. United States v. Howgate, 2 Mackey, 408; Wallace v. Maroney, 6 Mack. 221, 223; Reynolds v. Smith, 18 D. C. 27. Twice since the organization of this court the right of intervention has passed unquestioned. Robinson v. Morrison, 2 App. D. C. 105, 120; Matthai v. Conway, 2 App. D. C. 45, 50. The point must now be regarded as settled.

It is true the intervenors in this case do not claim ownership of the property, but a lien thereon and superior right to subject it to the satisfaction of their judgment. We see no difference in principle, however, between the right of intervention of one who claims title to the property, and of one who asserts an interest through a lien by contract, or by operation of law under an execution or attachment. Clarke v. Meixsell, 29 Md. 221; Buckman v. Buckman, 4 N. H. 319; Clough v. Cartis, 62 N. H. 409; Jacobs v. Hogan, 85 N. Y. 243; Drake on Attachments, Secs. 273, 275.

2. It is further urged that the petition of intervention is fatally defective in that it does not sufficiently appear from its allegations that the defendants in attachment had no other property upon which intervenors might have levied their execution, and obtained complete satisfaction. Had this objection been taken by demurrer and sustained, there would be no error in the dismissal of the petition. But however important the fact, it was not jurisdictional; and whilst its omission was a grave defect in the petition, it was one that could, and doubtless would, have' been supplied by immediate amendment had attention been directed to it at the proper time. It would be unjust now to hold, regardless of any error that may have been committed on the trial, that the judgment must nevertheless stand because of that defect in the petition.

3. The next and last point offered in support of the judgment would be decisive if well taken. The right to intervene is founded on an interest in the attached property, acquired by the issue, and delivery to an officer, of the execution. If there be no such interest the defect is incurable. The necessity of some interest in the property, by way of claim of title or lien, or superior right to satisfaction, is essential to the right of intervention. Phillips v. Both, 58 Iowa, 499, 502; Scharff v. Chaffee, 68 Miss. 641; Tira v. Smith, 93 N. Y. 87.

At common law, the lien of a fi. fa. dated from its teste. Freeman, Executions, Sec. 135. This was modified by the act of 29 Charles 2, Sec. 16, so as to make the lien (as against all but innocent purchasers for value, perhaps) date from the delivery of the writ to the proper officer for execution. That statute was in force in Maryland at the time of the cession .of the territory of the District, and has not since been repealed. Comp. Stat. D. C., p. 222, Sec. 1; Arnott v. Cooper, 1 H. & J. 471; Selby v. Magruder, 6 H. & J. 454; Furlong v. Edwards, 3 Md. 99, 113.

Founded in the fact that courts of justices of the peace are not considered courts of record, there is some question whether executions therefrom bind the property under the act aforesaid from the time of delivery to the officer, or from the time of actual levy only. 12 Am. & Eng. Encyc. of Law, 478; Freeman, Executions, Sec. 199.

In the view that we have taken of the case, that question is of no practical importance and need not be decided. There was no way in which the constable could have made an actual levy of intervener’s writ upon the property. It had been seized by the marshal under the attachment, and was thereby put beyond the interference' of any court or officer. Hagan v. Lucas, 10 Pet. 400; Covell v. Heymen, 111 U.S. 176. Whilst the writ might have been delivered to the marshal for execution (R. S. D. C., Sec. 912), the constable was the regular executive officer of the justice’s court, charged by law with the execution of its process. R. S. D. C., Sec. 1038. Piad the writ been delivered to the marshal himself, he could not have reseized the property and held it thereunder. There is no express provision of law requiring or authorizing him to endorse a subsequent execution as levied upon the property subject to the attachment, though he might probably be permitted to do so, in order to fix a right thereunder to claim the surplus after the discharge of the prior writ, or to contest its priority or validity.

The statute of Charles II aforesaid requires the officer to endorse upon each fija, the date of its receipt, for the apparent purpose of determining its priority; but provides nothing further to be done in order to fix and retain its lien upon property that may have been seized under a prior writ.

For the purposes of this case, at least, the action taken by the intervenors should be regarded as the equivalent of an actual levy. Everything was done that could bo lawfully done. The judgment was obtained and the writ issued and delivered to the regular officer of the court for execution. That officer could not take the property into his possession. All that he could do was to hold the writ, notify the marshal, perhaps, and remain in position to seize the property should the attachment be quashed, or its remainder, should a part only be required to discharge the prior writ. This we think was sufficient to authorize the judgment creditors to intervene and controvert the grounds of the attachment that bars the way to the enforcement of their execution.

4. This brings us to the consideration of the error assigned by the appellant. Did the court err in requiring the intervenors to assume the burden of proving that the grounds of the attachment were not true? The statute authorizes the issuance of an attachment at the commencement, or during the pendency, of a suit, upon an affidavit of the plaintiff alleging the existence of certain grounds, and “supported' by the testimony of one or more witnesses.” K,. S. D. C., Sec. 782.

Upon compliance with this section the attachment is issued by the clerk as a matter of course. As has been said by this court: “The duty of the clerk is ministerial. He makes no inquiry into the truth or falsity of any facts stated in the affidavits. If they conform generally to the statute, and the undertaking is offered with satisfactory surety, he issues the writ at once.” Weiler v. Chock, 4 App. D. C. 330.

The next section provides: “If the defendant, his agent or attorney, shall file an affidavit traversing the plaintiff’s affidavit, the court shall determine whether the facts set forth in the plaintiff’s affidavit are true, and whether there was just ground for issuing the writ of attachment; and if the facts do not sustain the affidavit, the court shall quash the writ of attachment or garnishment; and this issue may be tried by a judge at chambers on three days’ notice.” H. S. D. C., Sec. 783.

When the affidavit is traversed, the issue is to be tried, at the demand of either party, upon oral evidence. Robinson v. Morrison, 2 App. D. C. 105, 116. We think that by the natural and proper construction of the statute the burden, on that trial, is cast upon the plaintiff to prove the existence of the facts which justify the attachment. It does not say that the defendant shall disprove the facts alleged by the plaintiff, but that the court shall determine whether the facts alleged by the plaintiff are true, and shall quash his writ “ if the facts do not sustain the affidavit.”

The writ of attachment is a harsh and severe process, though necessary in many cases for the proper protection of creditors. The right to have it is a privilege granted upon the alleged existence of certain facts. The affidavits required are prima facie sufficient to authorize the clerk to perform the ministerial act of its issuance; but this prima facie case is overthrown by the traverse under oath, and if the plaintiff offers no evidence to support the truth of his averments, his attachment will and ought to fail. The affirmative is upon the plaintiff, and to require the defendant to take the burden of establishing a negative is to reverse the natural order of pleading and proof. There is certainly no hardship in imposing upon the former the burden of maintaining the advantage obtained by his writ. Having knowledge of the facts sufficient to justify him in making affidavit of their existence, he ought to be prepared with some evidence to prove his charges. Where the intent to defraud is charged in general terms, the defendant often might not know how and with what evidence to prepare to disprove the charge until informed by plaintiff’s evidence of the specific acts from which the inference had been drawn.

The conclusion that we have reached, after much consideration, is, in our opinion, not only sound in principle, but supported by many well considered decisions, which, when examined, will be seen, in so far as they may be influenced by statute at all, to be founded on provisions substantially like our own. Wright v. Rambo, 21 Gratt. 158, 162; Oliver v. Wilson, 29 Ga. 642, 645; Coston v. Page, 9 Ohio St. 397; Talbot v. Pierce, 14 B. Mon. 158, 164; Hawkins v. Albright, 70 Ill. 87; Jones v. Swank, 51 Minn. 285; Ellison v. Tallon, 2 Neb. 14; Citizens’ State Bank v. Baird, 42 Neb. 219; Wynn v. Wilmarth, 1 S. Dak. 172; Bamberger v. Halberg, 78 Ky. 376.

The effect of the intervention was to make the intervenors virtually defendants to the writ of attachment. By virtue of their acquired interest in the property, they had acquired the same right that defendants had to traverse the affidavit for attachment. If that attachment was falsely and wrongfully sued out, and defendants failed or refused to make defense to it, the intervenors had the right to do so in order to remove it as an impediment to their better right of seizure and sale in satisfaction of their execution. To this extent they were entitled to stand in the shoes of the defendants. Campbell v. Morris, 3 H. & McH. 553; Clarke v. Meixsell, 29 Md. 221. This situation illustrates, also, the reasonableness of the rule that imposes the burden of proof upon the plaintiffs, to sustain the attachment. If it were upon the intervenors, and especially in a case where there might be collusion between the plaintiff and defendant, their proceeding would rarely be productive of results.

It follows that the court erred in imposing the burden of proof upon the intervenors, arid that the judgment must be reversed.

5. In respect of the charge of collusion, however, between the parties, the rule is different. That issue is separable from the other, and upon it the intervenors have the affirmative and must assume the burden of proof. If the facts warranting the attachment should not be proved, it would be quashed without regard to the question of collusion ; for no plaintiff should have the benefit of an advantage obtained by false or reckless swearing, even if there has been no collusion, and the defendant simply remains indifferent to the charges against him. Even if proof should be made of conduct on the part of the defendants which, under ordinary circumstances, would justify attachment, the writ ought nevertheless to be quashed upon proof of fraudulent collusion between the plaintiff and defendant. If the facts were such as to bring the case within the provisions of the general assignment act (27 Stat. 474), such an attempt to give a preference would be as much within the prohibition of the statute as an attempt to accomplish the same end by private contract. Indeed, an attempt to use the process of the court for an unlawful purpose would be far more reprehensible.

For the error pointed out above, the judgment will be reversed, with costs to the appellants, and the cause remanded with direction to set aside the verdict and grant a new trial. It is so ordered. Reversed and remanded.