Davis v. Cardue , 38 S.C. 471 ( 1893 )

The opinion of the court was delivered by-

Ms. Chiee Justice MoIvejr..

■ The plaintiffs, having commenced their action to recover the sum of $399, alleged to be due by the defendant for lumber sold and delivered to him by the plaintiffs, applied for and obtained from the clerk of the Court of Common Pleas an order for the arrest of the defendant. The defendant having been arrested by virtue of said order, and having entered into bond as thereby required, gave notice of a motion based upon affidavits, copies of which accompanied the notice, as well as upon all the papers filed and served in the action, to vacate the order of arrest and for such further orders as may be just and proper. The plaintiffs, before the time for hearing the motion arrived, served additional affidavits to be heard on the motion, with a “statement that, if defendant wished to submit affidavits by way of rebuttal or rejoinder, they would not be objected to.” The motion came on for a hearing before his honor, Judge Kershaw, when defendant objected to the additional affidavits served by the plaintiffs, in so far as they were not in reply to the facts stated in the affidavits served by defendant, and his honor granted the following order, which is copied precisely as it appears in the “Case,” omitting the title of the cause: “On reading and filing notice of affidavits- of F. P. Cardue, J. L. Farmer, and S. Bounds, and on the pleadings and proceedings in this action, on motion of Dargan & Coggeshall, counsel for defendant, after hearing W. W. Harllee, Esq., for plaintiffs, ordered, that the order of arrest granted by Z. T. Kershaw, clerk of the Court of Common Pleas, on the 6th day of August, 1892, against defendant, F. P. Cardue, be vacated, and that the bail heretofore given by defendant be exonerated from liability; and the plaintiffs do pay to the defendant the sum of-dollars for the costs of this motion.”

From this order plaintiffs appeal upon the following grounds: 1st. Because the allegations in the affidavit of E. C. Commander, one of the plaintiffs in the action, attached to the complaint, made out a prima facie case of fraud as alleged, and the clerk was not in error in making the order of arrest. 2d. Because the affidavits served by plaintiffs, and heard by the court in reply to those of defendant, were strictly in reply to those of the defendant, and stated no new matter or facts which could be objected to in establishing the fact of fraud, were competent for that purpose, and were sufficient to sustain the order of arrest. These grounds of appeal raise substantially two questions: 1st. Whether the affidavit of Commander, upon which alone the order of arrest was made, contained facts sufficient to justify the granting of the order. 2d. Whether the additional affidavits submitted by the plaintiffs were in reply to those upon which the notice of the motion to vacate was based.

To determine these questions, it will be necessary to inquire what facts are stated in the affidavits pertinent to the issues which we are called upon to determine. The affidavits are too long for insertion in this opinion, but copies of them should be incorporated in the report of the case; and we will not undertake here to make anything more than a very summary statement of the facts which may be supposed to relate to the question of fraud. First, as to the affidavit of Commander. That affidavit, stripped of all unnecessary details, simply amounts to this: that defendant obtained from plaintiffs lumber to the amount stated, under a promise to pay for the same out of money which he was to receive for building a house for Mrs. Talbot, in instalments as the work progressed; that defendant failed to comply with his agreement, representing that there was more money due him from Mrs. Talbot than was really due, which defendant knew to be untrue; that there being a dispute as to the amount due plaintiffs by the defendant on the account for lumber, one S. Bounds, a contractor, was selected by the parties to decide as to the amount due, and upon his decision being handed in, the defendant refused to open said decision, “and from his evasions and contentions this plaintiff believes and alleges that the defendant, in making said contract, did so with a fraudulent intent to deceive and disappoint them in his promise to comply with the said contract, and that he intends to collect balance due him by Mrs. Talbot, and leave plaintiffs unpaid.” Further, the affiant deposes, that he “has been informed by J. L. Farmer, the agent of Mrs. Talbot, that the said defendant told him that as soon as he got the balance of bis money for the building, now nearly completed, he intended to leave the place. The deponent further states, that the said F. P. Cardue, the defendant, has no visible means out which this debt can be enforced, and alleges, from the facts above set forth, and his statements to J. L. Farmer that he intends to dispose of and remove his property and effects with a view of defrauding his creditors, in that he intends to leave as soon as he collects balance due by Mrs. Talbot, about $400. Deponent further states that, from all he knows and believes, the amount due him by Mrs. Talbot, with some small amount lumber and tools, constitute about all the property he is possessed of.”

1 Our first inquiry is, whether, assuming all the facts stated in this affidavit to be true, a sufficient showing is made to bring the case within the provisions of subdivision" 3 or 4 of section 200 of the Code, the only provisions which are, or could be, relied upon. That section provides that a defendant may be arrested “* * * 3. When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought,” the balance of that subdivision being manifestly inapplicable to the present case; and subdivision 4, “When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors.” We are unable to discover any fact stated in this affidavit which would even tend to show that the defendant was guilty of any fraud, “in contracting the debt or incurring the obligation for which the action is brought.” On the contrary, the naked facts, stripped of the expressions of affiant’s suspicions and beliefs, only show the ordinary ease of a purchase of lumber,, to be used in the construction of a building, to be paid for out of the money which the carpenter was to receive for constructing the building. No false representations, so far as we can perceive, are alleged to have been made at the time of entering into the contract for the purchase of the lumber. At the utmost, so far as this branch of the inquiry is concerned, the affidavit only shows — what, unfortunately for human nature, is too common — that, after making an honest contract., the debtor, when called upon to pay, resorts to evasions and subterfuges to evade the payment of a just debt. But that does not come within the provisions of the statute. The sole question is, whether there was any fraud in entering into the contract, and not whether the debtor has subsequently been guilty of fraud in attempting to evade compliance with his contract.

2 Nor do we think that any fact is stated which would bring the case within the provisions of subdivision 4 of section 200 of the Code. To do this, it is necessary that some fact ■ should be stated, tending to show that the defendant has either removed or disposed of his property, or is about to do so, with intent to defraud his creditors, and we are unable to find any such fact. Surely the statement alleged to have been made to Farmer by the defendant, “that as soon as he got balance of his money for the building, now nearly completed, he intended to leave the place,” was not sufficient to establish the fact, or even to convey the impression, that defendant had removed, or was about to remove, his property, “with intent to defraud his creditors.” We do not think, therefore, that there was any sufficient showing to warrant the granting of the order of arrest in the first instance.

3 4 But even if we are in error in this, the affidavits upon which' the motion to vacate the order of arrest was based, even when read in connection with so much of the affidavits served by the plaintiffs, as were in reply to those submitted by the defendant, were amply sufficient to show that there was no ground for the arrest. Disregarding all of the statements contained in the additional affidavits served by plaintiffs, which were not in reply to the facts stated in the affidavits served by defendant, as we are bound to do under the case of Myers v. Whiteheart, 24 S. C., 196, it seems to us clear that there was no such showing made as would justify the arrest of the defendant. As to the second inquiry raised by the grounds of appeal, it seems to us that it is only necessary to read the additional affidavits served by the plaintiffs, to see that many, if not the most, of the matters therein stated are not in reply to the statements contained in the affidavits served by the defendant. This is notably true as to Viering’s affidavit, which seems to relate almost entirely to matters not previously alluded to.

5 It was urged in the argument here, though the point is not made by any exception or ground of appeal, and, therefore, strictly speaking, not properly before us, that the terms of the order appealed from show that Judge Kershaw based his conclusion solely upon the affidavits submitted by the defendant, and did not consider the affidavits submitted by the plaintiffs, not even the first affidavit of Commander. We do not think that this position could be sustained, even if properly before us. In the first place, it is very manifest that there are either typographical errors in the order as set out in the “Case,” or that there were inadvertent verbal errors in the original draft of the order, which the context affords ready means of correcting. This is manifest, not only from the use of the word “counsels” in the plural instead of the singular number, but, also, from the very first line of the order, where the words — “motion based upon the” — are clearly omitted. Supplying this omission, the order would read: “On reading and filing notice of (motion based upon the) affidavits of F. P. Cardue,. J. L. Farmer, and S. Bounds, and on the pleadings and proceedings in this action,” &c. This would show that the order was granted upon hearing, not only the affidavits upon which the motion was based, but also the pleadings and proceedings, which, of course, embraced not only the original affidavit of Commander, but also all the other affidavits.

The judgment of this court is, that the order appealed from be affirmed.