Potter v. Graham ( 1898 )

Opinion by

Smith, J.,

This proceeding was commenced under the act of 1869 relative to fraudulent debtors. The merits of the plaintiff’s claim were conceded, while grounds for the attachment were abundantly shown on the motion to dissolve. The fraudulent design of the defendant was manifest throughout. On this subject the court below, in refusing to dissolve the attachment said: “ Without going further into the evidence as to his conduct both preceding the issuing of these attachments and subsequent thereto, it is sufficient to observe that his attitude toward these creditors both before and since is manifestly that of a man whose purpose is to baffle and defraud.” After the attachment was levied, and while the rule to dissolve was pending, the defendant sold the property attached, by bill of sale, to the Jarecki Mfg. Co., for whose benefit he continued this defense in his own name. Failing to have the attachment dissolved, no defense was put in to the action and judgment by default was entered for the plaintiff. The appellant is here with a record wholly against him on the merits. It is also fatally defective for purposes of review. The specifications of error relate to the action of the court below on interlocutory motions and the entry of final judgment, none of which is supported by exception of any kind, so far as appears by this record. Therefore there is nothing properly before us for review.

Considered as an appeal from the action of the court refusing to dissolve the attachment, it could not be sustained as that was a matter of discretion. The proceeding by attachment is in the nature of a motion for summary relief addressed to the sound discretion of the court below. The testimony taken on the motion to dissolve the attachment was for the information of that tribunal on the rule to dissolve; and is not to be considered in the subsequent proceedings. While we do not review testimony thus taken, we may say that in the present case the court was entirely justified in discharging the rule. There is nothing before us to show any abuse of discretion on this question. The sufficiency of bonds, the validity and regularity of their execution and the solvency of bondsmen are questions peculiarly for the court whose duty it is to pass upon them. The opinion of the court in this case shows that complications arose through the action of the defendant which might operate unjustly, had the bond which was presented been approved. The approval or disapproval of the bond was clearly a matter of discretion, in the exercise of which no misuse of power appears. The objection to the entry of judgment has no substantial basis. The plaintiff filed a statement under the practice act and served notice thereof on the defendant. No answer having been filed within the time fixed by the statute, judgment was duly entered against the defendant for want of an affidavit of defense. This was entirely regular. The defendant having appeared to the action the cause was proceeded with as in actions of assumpsit and, under the act of 1887, the rules of procedure in those actions are applicable here.

The judgment is affirmed.