C. M. Hapgood Shoe Co. v. Saupp , 7 Pa. Super. 480 ( 1898 )

Opinion by

Rice, P. J.,

This was a proceeding under the Act of July 12, 1842, P. L. 339, and comes before us on appeal from tbe warrant of commitment issued by tbe president judge.

The practice in such cases, as laid down in Gosline v. Place, 32 Pa. 520, has been followed in subsequent cases : Berger v. Smull, 39 Pa. 302; Hart v. Cooper, 129 Pa. 297 : Grieb v. Kuttner, 135 Pa. 281. Nor has the revisory jurisdiction of the appellate court been enlarged by the Act of May 9, 1889, P. L. 158, which provides that all appellate proceedings theretofore taken by writ of error, appeal or certiorari, should thereafter be taken in a proceeding called an appeal. We are to consider the case as if the proceedings had been brought before us by certiorari. We are not to review the judge’s opinion on the proofs, because this writ brings up nothing but what appears on the record, and the evidence taken on the hearing is not part of the record, and because, in addition, it is not the province of the reviewing court to pass upon the credibility of the witnesses or to decide as to the weight of the testimony, even though it be sent up with the record, and printed. Our revisory power extends no further in such cases than to see that the judge has kept within the limits of his jurisdiction, and has exercised it with regularity, according to law.

Taking up the several objections to the regularity of the proceedings in their natural order, we remark, in the first place, that the objection, that the affidavit is insufficient in law because it was made by the plaintiff’s attorney, upon information and belief, and it is not sufficiently specific in alleging the acts necessary to give the judge authority to issue a warrant of arrest, is not well taken. The act expressly provides that the “ satisfactory evidence ” which the judge shall require before issuing the warrant of arrest may consist of the affidavit of the complainant “or some other person or persons.” As to the other branch of the objection, an inspection of the affidavit shows, that the allegation as to the defendant’s unjust refusal to apply the money in his hands to the payment of his debts is' not a mere naked averment in the language of the act, resting alone on information and belief, but is supported by a positive averment of facts admitted by the defendant on the trial of another case. These are set forth with great particularity, and if unexplained, would raise a prima facie presumption against him. These averments, taken in connection with the general averment drawn in the precise words of the act, were sufficient under our decisions to give the judge authority to issue the warrant if the evidence was satisfactory to him: Gosline v. Place, 32 Pa. 520. See also Berger v. Smull, 39 Pa. 302; Sharpless v. Ziegler, 92 Pa. 467: Spencer v. Bloom, 149 Pa. 106.

The next objection is to the sufficiency of the warrant of arrest. It is based on the fact that it omits a portion of the affidavit. We do not regard this omission as fatal. The warrant is in the precise form prescribed by the third section of the act, and at the same time it was executed an exact copy of the affidavit, duly certified by the judge as the act requires, was given to the defendant. The purpose of the warrant is to enforce the attendance of the defendant at the hearing. All that the act requires is that it shall “ briefly set forth the complaint,” and for fuller information of what he is called upon to answer the defendant must look to the certified copy of the affidavits. By these and not by the brief summary of them contained in the warrant is the authority for the arrest to be determined on appeal. See Hart v. Cooper, 129 Pa. 297. The defendant in the present case evidentíy took the same view until the case came into this court, for he answered all the allegations of the affidavit fully, including that which was defectively stated in the warrant, and, so far as appears, did not specifically raise the present objection on the motion to quash. We are of opinion that it is now too late to do so.

The third objection is, that the commitment is insufficient in law because it does not recite the facts from which the judge drew the conclusion, that the defendant “ unjustly refused to apply the money in his hands to the payment of his debts.” Substantially the same objection was raised in Gosline v. Place, 32 Pa. 520, but was overruled. The commitment in the present case contains as full a recital of the facts as the one there passed upon, and upon the authority of that case we conclude, without further discussion, that it is sufficient.

Considerable stress is laid on the effect of the defendant’s answer, and upon the facts therein alleged, it is argued that the refusal of the defendant to apply the money admittedly in his hands to the payment of this claim, was not “ unjust.” But the defendant’s answer is not conclusive. The act expressly provides that the judge “ shall also receive such other proof as the parties may offer,” and, as we have seen, this additional evidence is not brought up for review. It is for the judge to decide whether it sustains the allegations of the answer, or whether on all the evidence “ the allegations of the complaint are substantiated,” and his decision — the proceedings being regular — is not re viewable. We may remark, however, with reference to the facts set up in the answer, that the result of this proceeding is not to compel an insolvent debtor to prefer one creditor over others. As the learned judge well says: “ A debtor in the position of the defendant can readily and easily avoid imprisonment or arrest for debt by following one of two courses. Prior to his arrest he can assign the money in trust for all his creditors; after arrest he can make an assignment under the insolvent laws. But to allow him to quibble and say that, because he had not enough to pay all, he would pay no one, would be to make it easy for debtors to break up with a pocket full of money, and then hold their creditors at bay until said creditors agreed to such terms as said debtor saw fit to propose.” But we need not go into the merits of the case; it is sufficient for us to say that we find no substantial irregularity in the proceedings.

The proceedings are affirmed and the record is remitted.