Luhrig Coal Co. v. Ludlum ( 1903 )

The only question in this case worthy of report, is as to whether the affidavit is sufficiently full and certain to meet the requirements of the statute in such eases.

So much of Section 5492, Revised Statutes, as applies to this case, is as follows:

“An order for the arrest of defendant shall be made by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his authorized agent or attorney, stating the nature of the plaintiff’s claim; that it is just, and the amount thereof, as nearly as may be, and establishing one or more of the following particulars:

“5. That he * * * fraudulently contracted the debt, or incurred the obligation for which suit is about to be or has been brought. The affidavit shall also contain a statement of the facts claimed to justify the belief in the existence of one or more of such particulars.”

It will be noticed that in the forepart of the section an order of arrest is allowed when an affidavit .is filed, stating the nature of the plaintiff’s claim, that it is just, and the amount thereof as nearly as may be, and establishing one or more of the six particulars for an arrest mentioned in the section. This word “establishing,” standing alone, would seem to mean the same as proving by affidavit, but the latter part of the section, which provides that the affidavit shall also contain a statement of the facts claimed to justify the belief in the existence of one or more of such particulars, seems to modify the meaning of the word establishing, to the extent that when the plaintiff has a belief in the. existence of one or more of said particulars, and sets out facts tending to justify such belief, and makes positive affidavit thereto, he thereby establishes such particular.

As this affidavit is a part of the plaintiff’s proceeding against the defendant for the recovery of his claim — a charge against him — certainty to a certain intent in general, is all that can be required. As to such certainty, it is held that it consists in such clearness and distinctness of statements of the facts constituting the cause of action, that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who is to give judgment. Rex v. Horne, Cowp., 682; 6 Cyc. Law & Pro., 727; The King v. Lyme Regis, 1 Doug., 158. See also Crofton v. State, 25 Ohio St., 253.

The affidavit in question in this case fully meets the above requirements as to certainty. It charges in the words of the fifth particular of the statute, that the defendant fraudulently contracted the debt and incui*red the obligation on which the suit was brought, and then states the facts claimed to justify the belief in the existence of this particular, as follows:

“And that at the time of each purchase of the coal set out in the petition and each item thereof, said defendant was indebted to an amount largely in excess of the value of all his property and assets, had knowledge of such facts at each of said times, and that at each of said times he did not intend or expect to pay- for the coal so purchased, and had no reasonable expectation of paying for the same.”

This fully and clearly informed the defendant, and he must have so understood it, that he would be required to ánswer the charge that at the time of the several purchases of coal he was indebted to an amount largely in excess of the value of his property and assets; that he had knowledge of such facts at the time of each purchase; that he did not intend or expect to pay for the coal so purchased; and that he had no reasonable expectation of paying for the same. This statement in the affidavit, as to the facts justifying the belief that the defendant fraudulently contracted the debt and incurred the obligation, is so clear and certain, that not only the defendant, who was ■to answer the charge, but also the court who was to ascertain the truth of the allegations and render judgment, could not fail to fully and clearly understand the facts upon which the plaintiff relied. That being so, the affidavit is certain to. a certain intent in general, and sufficient. The affidavit is required to contain a statement of the facts claimed to justify the belief, and not the evidence proving such facts. The rule as to the statement of such, facts in such an affidavit is -the same as the rule as to the statement of facts in a pleading. The facts claimed to justify the belief should be stated in the affidavit, and then upon the hearing the evidence tending to prove such facts should be brought forward.

In the ease at bar the charge in the affidavit, that at the times of the several purchases of coal the indebtedness of the defendant largely exceeded the value of all his property and assets, that he had knowledge of that fact, that he did not intend or expect to pay for the coal, and had no reasonable expectation of paying for it, is a charge of facts clearly showing that the debt was fraudulently contracted; because he who purchases property not intending to pay for the same, is guilty of a fraud. Wilmot v. Lyon, 49 Ohio St., 296.

It is therefore clear that the court of common pleas erred in sustaining the motion to vacate the order of arrest, and in discharging the defendant from custody, and that the circuit court erred in affirming the common pleas.

The orders and judgments of both courts will be reversed, and cause remanded to the court- of common pleas for further proceedings according to law.

Judgments and orders reversed and cause remanded.