Badger v. Reade

• Citation: 39 Mich. 771
• Court: Supreme Court of Michigan
• Decision Date: 22 November 1878
• Parties: Nicholas D. Badger v. Jennie B. Reade

39 Mich. 771

Nicholas D. Badger v. Jennie B. Reade

Supreme Court of Michigan

November 22, 1878

Submitted October 29, 1878

Certiorari to Frank Emerick, Circuit Court Commissioner for Washtenaw county.

Proceedings quashed with costs.

A. J Sawyer for plaintiff in certiorari. The affidavit for a warrant under the Non-imprisonment Act to arrest a debtor on a claim in judgment must show that the judgment was founded on contract, Tiffany's Justice's Guide (5th ed.) 537 2 Burrill's Pr., (2d ed.) 292-3: 3 id. 502.

E. D. Kinne and M. V. & R. A. Montgomery for defendant in certiorari.

OPINION

Campbell, C. J.

On the 28th day of August, 1878, Mrs. Reade applied to Frank Emerick, circuit court commissioner of Washtenaw county, for a warrant to arrest Badger under the non-imprisonment act, and upon the return of the warrant, his objections to the proceedings being overruled, the respondent declined making any issue, claiming the showing insufficient, and was committed. He brings certiorari, and the objections made go to the legal sufficiency of the affidavits presented to the commissioner.

The right to issue such a warrant is confined to cases in which, by preceding provisions of the chapter authorizing it, a defendant cannot be arrested or imprisoned. Comp. L., § 7176. The preceding sections 7174-5 prohibit arrests in civil proceedings for the recovery of money on a judgment or decree founded on contract, or for recovery of money due on contract, or for damages for the breach of a contract, and except from the prohibition proceedings for contempt to enforce civil remedies, actions for fines, penalties or forfeitures, or for breaches of promise to marry, or for moneys collected by a public officer, or for misconduct or neglect in office, or in professional employment.

This exemption from imprisonment has been extended by the Constitution, so that there is now no power to arrest in some of the cases mentioned in section 7175. The statute, however, has not been altered to conform to the Constitution, and may possibly have left some cases beyond the reach of the punitory jurisdiction which would have been provided for had such an amendment been adopted. We are not required in this case to discuss that question.

In cases where the preceding sections exempt parties from arrest, a warrant may be applied for to the officers named if "satisfactory evidence shall be adduced to such officer by the affidavit of the plaintiff or of some other person or persons that there is a debt or demand due to the plaintiff from the defendant, and specifying the nature and amount thereof as near as may be, for which the defendant, according to the provisions of this chapter, cannot be arrested or imprisoned, and establishing one or more of the following particulars." Those particulars are in brief, first, that defendant is about to remove his property beyond the jurisdiction of the court where suit was brought, with intent to defraud his creditors; or second, his refusal to apply his assets in payment of the judgment rendered in favor of the complainant; or third, that he has assigned, removed or disposed of, or intends to dispose of his property with intent to defraud his creditors; or fourth, that he fraudulently contracted the debt or incurred the obligation sued on.

When the warrant issues and the respondent is brought in he may controvert the allegations and verify his denial by affidavit, in which case only a further examination is had on the facts. § 7180. The whole issue is upon the allegations of the complainant, and the result depends upon those and their truth, which is held admitted if not denied. § 7182. Spencer v. Hilton, 10 Wend. 609.

The affidavits must set up facts on knowledge and not on belief, and if complainant does not know the facts, other affidavits must be produced from those who do know them. People v. Recorder of Albany, 6 Hill 429; Proctor v. Prout, 17 Mich. 473. The fact that matters stated are not hearsay, but are on personal knowledge, must distinctly appear. Id. And it is held in the same cases that the facts must be specific and not general so that a defendant may know precisely what he is called on to controvert. See also Spencer v. Hilton, supra; Smith v. Luce, 14 Wend. 237; Matter of Teachout, 15 Mich. 346. The facts must be stated as a witness would be allowed to state them on the witness stand,--not inferentially, but directly and positively. For a similar principle see People v. McAllister, 19 Mich. 215.

In the present case, where the claim was alleged to be in judgment, it was necessary to set forth such a judgment as would authorize the proceeding, as well as such other facts as would convict the respondent of the conduct which the statute makes sufficient ground for a warrant.

The commissioner in his warrant sets forth that satisfactory evidence has been adduced before him of all of the kinds of fraud set forth in the statute, except fraud in the creation of the liability. It is therefore necessary to see what he had before him.

There were three affidavits,--one of Mrs. Reade covering the whole ground inferentially; one of Morgan Vaughn showing the condition of respondent's deposit account; and one of Norton S. Case confined to his proceedings under an execution.

Mrs Reade undertakes to set out the recovery of a judgment. She does not state when the judgment was rendered, except that it may be inferred it was sometime between December 5, 1877, and February 9th, when a motion for a new trial was denied which had been made February 2d, 1878. As every judgment is of record and can be precisely identified, the date is a necessary part of its description;...