Bancroft & Co. v. Talbott ( 1876 )

By the Court.

Two questions have been discussed in this case, each of which, it may be said, is important and difficult.

1. Has a justice of the peace power to discharge an attaehment issued by him, on the ground that the affidavit upon which it was issued is untrue ? If authorized to do so by statute, the authority must be found in section 202 of the justices code (S. & C. 804), which provides: “The provisions of the act entitled 1 an act to establish a code of civil procedure,’ passed March -11, 1853, which are in their nature applicable to the jurisdiction and proceedings'before justices, and in respect to which no special provision is made by statute, are applicable to proceedings before justices of the peace.” The justices code confers jurisdiction to issue attachments, bufno “ special provisions ” are made therein for the discharge thereof, except upon the giving of undertakings, as is provided in sections 33 and 52. Among the provisions in the “ code of civil procedure ” at the date of the passage of the justices code, to wit, March 14,1853, were the following: “Sec. 228. The defendant may at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment as to the whole or a part of the property attached.” “Sec. 229. If the motion be made upon affidavits on the part of the defendant, or papers and evidence in the case, but not otherwise, the plaintiff may oppose -the same by affidavits or other evidence, in addition to that bn -which the order of attachment was issued.” Upon this state of legislation it would appear very clearly that sections 228 and 229 of the civil code were “ applicable to proceedings before justices of the peace.” A doubt, however,- is raised by an amendment of section 228, passed March 11, 1857, which provides that “ the motion may be heard and decided by the court in any term or regular session thereof; or the motion may be made, heard, and decided by any judge thereof in vacation.”

While it is true that the terms of-this addition to the section do not seem appropriate to a justice’s court, which is always open and has but one judge, still the substantive “ provisions ” of the section “ are in their nature applicable to the jurisdiction and proceedings before justices.” But whether the clause added by the amendment was intended to apply to justices or not, we are of opinion that the provision, as it stood before and still remains, confers the authority on justices to discharge attachments in such cases ?

2. Can the order of a justice discharging, or refusing to discharge an attachment, be reviewed on error on the ground that the finding of the court is supposed to be against the evidence ?

While some members of the court are prepared to answer this question in the negative, we are all of opinion that if the weight of the evidence may be inquired into, the order should not be disturbed, unless it be clearly against the evidence ; and that, in this case, there is no such preponderance against it as would justify a reversal of the order discharging the attachment. The motion is therefore overruled.