Morrison v. Ream , 1 Bur. 83 ( 1842 )

Miller, J.

This cause was commenced by attachment in the district court of Dane county, by the plaintiff in error against the defendant in error, on the following affidavit: “ James Morrison, being duly sworn, doth depose and say that Robert L. Ream is justly indebted to him for goods, wares and merchandise sold and delivered, money lent, paid, laid out and expended for the use of said Ream, in the sum of $282.66, not deducting certain counter demands and set-off claims against the above claim in favor of said defendant, the exact amount of which counter demands this affiant is not knowing: And this affiant swears that his whole claim arises from, and is founded in contract: This affiant further deposes and says, that said Ream is about fraudulently to dispose of his property, so as to hinder or delay him the said James Morrison, in the collection of his said demands against him, as this affiant verily believes ; because this affiant has frequently requested said Beam to settle and pay him, his said demands, or to meet him for the purpose of adjusting the same, and he has refused so to do, assigning no reasonable cause for neglecting to meet this affiant, and settling his said demand; and further, said Beam very recently sold off his goods and effects, or the principal part of them, as-this affiant verily believes, and is about to remove with his family, out of this county, and to leave no property to the knowledge of this affiant, on which an execution can be levied or satisfied.” Which affidavit was indorsed, “satisfied,” by a supreme court commissioner.

On motion on the part of the defendant, the district court dismissed the proceedings. In this there was no error.

The affidavit leaves the amount claimed too vague and uncertain, and the alleged fraud is very far from making such a case as to warrant this writ. It cannot be pretended that this affidavit shows that the defendant was about fraudulently to dispose of his property to defeat or delay his creditor.

The facts necessary to entitle a party to a writ of attachment, must be proven to the satisfaction of the judge or commissioner, and the circumstances upon which the belief of the affiant is founded; and by the act of February 15, 1842, should be embodied in the deposition. Proof, that is legal evidence, from the party or a witness is required. Mere belief is not sufficient. Nothing short of facts and circumstances within the knowledge of the affiant will do. 11 Johns. 175. The supreme court of New York, through a long train of decisions, have settled the practice that the insufficiency of the proof may be taken advantage of by a motion to quash. 1 Cowen’s Treat. 480. Belief, report, information or suspicion are not sufficient. 10 Wend. 420. The officer must be satisfied, and he must be so satisfied from proof of facts and circumstances, not from the belief of any one. Such facts must be proven, as will leave no reasonable doubt on the mind of the officer, that the defendant is about to commit the fraudulent acts mentioned in the statute. For instance, if the party proves positively that the defendant declared his intention to remove or sell his property to avoid the payment of his debts, the officer could draw his own conclusions. 14 Wend. 237; 3 Cow. 206; 14 Johns. 175, 257; 6 Wend. 438; 6 Cow. 234. The requirements of the act should be strictly complied with. 3 Cow. 206. As this is an allegation of fraud, and in its nature a criminal proceeding, the officer should have at least, such strong presumptive proof, as being uncontradicted or unexplained, would induce him to convict the defendant of the charge if he were on trial before the petit jury. 10 Wend. 608.

In this case there is nothing to traverse; the fact set forth in the affidavit not being sufficient to lay the foundation for the writ. When a writ has been served on the defendant, the publication of notice is dispensed with, so is also the entering of the defaults, but the defendant must appear and plead as in other cases. It is contended that when the writ is obtained upon proof, and upon a traverse of the facts it is made to appear that they are not true or well founded, then by the direction of the statute, the suit becomes nothing more than if it had been commenced by summons. But it would lead to oppression if we were to put such a liberal construction upon the act as to save the suit and the costs to the plaintiff in such a case, or a case like the present. The fourth section of the act authorizes a traverse of the facts set forth in the affidavit, and, if their falsity shall be made to appear, the property attached shall be released. The act no where says, that if the attachment is abated or quashed, the suit shall be and remain as in cases of a summons. By the seventh section, in case of personal service of the writ upon the defendant, it shaE not be necessary to call the defendant and have his default entered, but the suit shall proceed as in ordinary cases of summons, and no notice shall be required to be published, as required by the third section of the act to which this is amendatory. Prom the reading of this section it is apparent that the only object of the legislature in providing for the annexation of a summons to the writ of attachment was as herein stated, and cannot be construed to extend to the relief of a party who has obtained a writ of attachment, without having strictly complied with the prerequisites of the statute.

The judgment is therefore affirmed, with costs.