Grollman v. Lipsitz , 43 S.C. 329 ( 1895 )

The opinion of the court was delivered by

Mr. Justice Gaby.

The above entitled causes, with one other in which no appeal has been taken, were brought in the Court of Common Pleas for Beaufort County, and attachments against defendant’s property were issued. The attachments were all issued upon an affidavit in each case, made by L. Grollman, which will be set forth iu the report of the cases. There was also in each case the affidavit as to cause of action. Thereafter, the defendant, upon affidavits, moved to vacate the attachments upon various grounds hereinafter mentioned. The plaintiffs offered in reply quite a number of affidavits. The affidavits being objected to as not in reply, his honor, Judge Townsend, who heard the motions, said he would hear the affidavits, and pass upon the question of their admissibility when considering the motions.

The presiding judge made orders setting aside the attachments in all the cases? There was one case, that of John F. Werner & Co., represented by other counsel, in which the motion to vacate was not resisted, it being admitted that the undertaking was fatally defective; this case, however, the presiding judge used for writing his principal decision, and in all the other cases referred to his decision in this case, deciding also upon special points in the other cases. The orders of the presiding judge will accompany the report of the cases.

1 The first exception is as follows: “Because his honor erred in holding and so deciding, that the affidavits on which the attachments issued were insufficient to show ground for attachment.” The affidavit is very long, and we will not set out at length the different facts therein alleged to sustain the attachments. It not only appears upon the face of the affidavit, that the defendant committed certain acts from which a fraudulent intention might be inferred, but there are also admissions on the part of the defendant stated in the affidavit tending to prove such fraudulent intention. We say, “upon the face of the affidavit,” because it is not within the power of the Supreme Court to decide upon the credibility of the affiant in such cases, nor whether the facts are true or untrue. These are matters for the Circuit Court. If, however, the facts alleged in the affidavit are true, then they were sufficient to sustain the attachments. The first exception is, therefore, sustained.

2 The second and third exceptions are as follows: “II. Because his honor eri’edin ruling out plaintiff’s affidavits in reply,thedefendant having moved upon affidavits. III. Because his honor erred in holding that the affidavits upon which the attachments were issued were disposed of and explained away by defendant’s affidavits, and that defendant’s moving affidavits showed that there was no ground for attachment, without having taken into consideration plaintiff’s affidavits in reply.” This court has not the power, as just stated, to consider the question as to the credibility of those making the affidavits. As hereinbefore stated, objection was made when plaintiffs offered their affidavits in reply, that such affidavits were not in reply, and, therefore, inadmissible. His honor allowed them to be read, and said he would pass upon the question of their admissibility when he came to consider the motions on their merits. In the case of John F. Werner & Co. v. Lipsitz, in which his honor made his principal decision, he says: “Affidavits were offered in reply to defendant’s affidavits, objection was made to their introduction. I overruled the objection, but stated at the time that I would consider only so much thereof as was strictly in reply to the statements made in defendants’ affidavits, and nothing that tended to supplement plaintiffs’ case as first made, and I have done so.” It does not appear which affidavits were ruled by his honor to be in reply, and which were excluded. The plaintiff had the right to know which affidavits were allowed in reply, and the failure of the presiding judge to accord them such right is reversible error. These exceptions in so far as they complain of error on the part of his honor in the particulars just mentioned are sustained.

3 The fourth exception is as follows: “Because his honor erred in deciding that the nonservice of the affidavit and warrant of attachment upon the defendant was fatal, and sufficient ground for setting aside the attachment.” The statute does not require such service, and this court certainly has no right to interpolate such provision into the statute. It is entirely a matter for the legislative department of the government. Section 253 of the Code provides that a true and attested copy of the attachment shall be delivered to the party whose real estate is attached, by the officer serving the same; and section 257 also provides for leaving a certified copy of the warrant of attachment with certain parties, where the property is incapable of manual delivery. These circumstances rather tend to sustain the doctrine found in the maxim: “expressio unius, exclusio alterius.” We think the presiding judge committed error as complained of in this exception, and the exception is, therefore, sustained.

4 The fifth exception is as follows: “Because his honor erred in deciding that an undertaking on attachment must be under seal.” The statute uses the word “undertaking” and not the word “bond.” An “undertaking” is good without a seal, and'this exception is, therefore, sustained. The sixth exception is as follows: “That his honor erred in holding that one member of a firm has no power to sign the firm name to an undertaking on attachment without special authority so to do, and that such authority must be shown.” The undertaking does not require a seal, as we have just stated, and, therefore, his honor was in error. This exception is, therefore, sustained.

5 The seventh exception is as follows: “Because his honor erred in holding that where plaintiff’s name is signed to the undertaking by an attorney in fact, under a proper power so to do, such power must be filed with the undertaking, at the time of the issuing of the attachment, and it is not sufficient that it be filed after the attachment has been issued.” Again we find that there is no statutory requirement to this effect, and the presiding judge was in error. The judge, clerk of the court, or trial justice, before issuing the warrant, should have such facts before him as satisfy him that the undertaking is that of th& plaintiff. Such officer may demand the authority by which the agent acts for the plaintiff, and where there is a power of attorney in writing, may have it filed with the undertaking, but the failure to do so is not fatal to the attachment. This exception is, therefore, sustained.

6 The eighth exception is as follows: “Because his honor erred in holding that there must be a subscribing witness to an undertaking on attachment.” Although there is no statutory requirement to this effect, it is contended that it is a requirement of Rule 66 of the Circuit Court. Ru,le 66 is as follows: “Whenever a justice or other officer approves of the security to be given in any case, or reports upon its sufficiency, it shall be his duty to require personal sureties to justify. And all bonds and undertakings shall be duly proved by a subscribing witness, or acknowledged in like manner as deeds of real estate, before the same shall be received or filed.” The limitation upon the power of the judges to make rules is that such alterations or additions be not inconsistent with any of the statutes of the State. The question, then, is whether or not said rule (66) is inconsistent with any of the statutes of the State. This rule is not simply a regulation of practice, but imposes a condition upon those suing out attachment proceedings. It is, therefore, inconsistent with the statutes of the State, and this exception is sustained.

7 The ninth exception is as follows: “Because his honor erred in holding that the affidavit as to cause of action was insufficient in the case of M. Ferst’s Sons & Co., Savannah Grocery Co., and Savannah Steam Bakery Co., in that same was made not by any member of firm, but upon information and belief by the attorney and traveling salesman respectively.” The provision of section 250 of the Code is that the warrant may be issued “whenever it shall appear by affidavit that a cause of action exists against such defendant, specifying the amount of the claim and the grounds thereof,” &c. There is no requirement that the affidavit must be made by any particular person, and, therefore, this exception is sustained.

The defendant’s counsel gave notice that if the decision of the Circuit Judge could not be sustained upon any of the grounds upon which he placed it, they would insist that it should be sustained on the ground: “That there was no affidavit to show that the property that the defendant is alleged to have fraudulently disposed of, was not a part of defendant’s homestead, and that such affidavit was necessary for the issuing of an attachment. And in the case of Waterhouse & Danner, that the Circuit Judge not having passed on the point made, that the name of the firm was not signed to the undertaking, they would insist on this point in the Supreme Court.”

8 As to the first ground upon which the defendant relies, we do not think it can be sustained. The cases of Martin v. Bowie, 37 S. C., 102, and Bradford v. Buchanan, 39 Id., 237, show that the right to a homestead in the property does not prevent proceedings to sell the property, but the homestead will be protected when it is made to appear that it exists. Of course, the party entitled to a homestead can not be deprived of such right.

9 In regard to the point as to the manner in which a partnership can sign an undertaking, we are of the opinion that in this case the undertaking was properly signed. There are two ways in which a partnership may bind itself by its signature to a contract not requiring a seal: 1st. By simply the name of the partnership, as “Waterhouse & Danner,” and 2d, by the signatures of the individual members composing the partnership, provided it appears in the instrument of writing that the intention is to bind the partnership. A copy of the undertaking is not set out in full, but we must presume that this intention sufficiently appears in the undertaking, in the absence of testimony to the contrary.

It is the judgment of this court, that the several orders appealed from be reversed.