Wando Phosphate Co. v. Rosenberg , 31 S.C. 301 ( 1889 )

The opinion of the court ivas delivered by

Mr. Chibe Justice Simpson.

An attachment was granted by his honor, Judge Hudson, in the action below upon certain affidavits submitted by the plaintiff, respondent. A motion was afterwards made by the defendant, appellant, to dissolve or discharge said attachment, and affidavits were submitted both by respondent and appellant. This motion was refused by his honor, Judge Hudson, who heard the same. The defendant has appealed on the ground that the attachment was both irregularly and improvidently issued, and also upon the further ground that his honor erred in considering the conduct of the defendant subsequent to the issue of the attachment in determining the question of irregularity, &c., on the motion to discharge.

First, should the attachment have been discharged because of irregularity ? This question calls for an examination of the affidavits upon which it was issued, and also for a statement of the legal principles which control in such cases. Attachments are statutory proceedings, and they are intended to summarily dispossess a party of his property, and to hold it subject'to the result of an action in progress. And being in direct conflict with that dominion and right which every one has at common law over his own, and which government is constructed to protect, statutes authorizing such proceedings have always been strictly construed, and all of their requirements absolutely demanded to be present. True, they are efficient and useful remedies, and very advantageous to commerce and trade, but still they are harsh and summary, and are only allowed upon the conditions found in the statute, which must be made to appear in the affidavit submitted. This, too, not upon allegations founded upon information and belief and hearsay merely,-but upon the averment of facts and occurrences, which, if true, would at least furnish prima facie evidence of the existence of the statutory condition upon which the attachment is sought. This is the law in this State, as adjudged in several cases. Myers v. Whiteheart, 24 S. C., 202; Smith Melton v. Walker, 6 Id., 169; Brown v. Morris, 10 Id.., 469; Claussen v. Fultz, 13 Id., 478; Ivy v. Caston, 21 Id., 583.

Now, in the action below the attachment was moved on the, ground that the defendant had disposed of, or had secreted, his property, with intent to defraud his creditors, or was about to dispose of or secrete said property with said intent. These are some of the conditions found in the attachment act, and if the affidavits submitted contain an averment of facts which would prima facie sustain these charges, and the existence of which does not depend upon mere information and belief or hearsay, but which are susceptible of proof by competent and sufficient evidence, then the warrant was properly issued, otherwise it was •irregularly issued, and should have been discharged. To be a little more distinct: we mean to say that the affidavit is the primary foundation for the attachment, and it must contain an allegation of the existence of one or more of the conditions prescribed in the attachment act, or of facts from which they may be inferred, resting upon the knowledge of the affiant or of some one else as the source of the information.

Now, the question is, did the affidavits here conform to this principle? They were seven in number; and to be sufficient, it was necessary that they should show a disposition or secreting of property by the defendant, with intent to defraud his creditors, or a purpose to do so. As to these precise grounds, there is nothing in the affidavit of Hacker, the president of the plaintiff company, except a general charge, founded entirely on his belief based upon information received from others, to wit, from Huggins and Blackwell, whose affidavits accompany his. Upon examination of these, it will be seen that they are equally deficient with that of Hacker upon the exact points involved. The only fact stated upon the knowledge of Huggins, is that he bought eleven barrels of flour, at $5.75 per barrel, from defendant of the brand of “Michigan Straight,” which he thought was cheap. He, however, states the reason, given by the defendant, why he could sell at that price, to wit, that he had bought before the rise. Blackwell does not make any statement upon his own knowledge, except that he knew of sales by the defendant on several occasions below cost, and that the defendant was selling goods at five different stores. The balance of his affidavit is upon information and belief, founded upon hearsay, and stating the general impression of the community as to whether the defendant was doing a safe or a reckless business. The other‘affidavits, as it appears to us, altogether fail to touch the main points, to wit, whether the defendant was disposing of or secreting his property, with intent to defraud his creditors, or was about to do so.

If an attachment can issue simply because a merchant is doing a large business, sometimes selling below cost, and extensively advertising, and perhaps producing the impression in the community that a crash is approaching, but few enterprising merchants would be entirely safe. And yet, when the affidavits here are analyzed, they amount to nothing more than this, and fail entirely to sustain the charge, that defendant was disposing of his property to defraud his creditors, or was about to- do so. We think, under the authority of our cases cited above, and because of the insufficiency of the affidavits upon which the warrant was issued, the motion of the defendant to discharge the attachment should have been granted. See, particularly, Myers v. Whiteheart, 24 S. C., 202. Such being our conclusion, it is unnecessary to adjudge the other questions raised in the appeal.

It is the judgment of this court, that the judgment of the Circuit Court be reversed on the ground stated hereinabove, and that the attachment be discharged.

Mr. Justice McIver and Mr. Justice McGowan concurred in the result.