Birdsall v. Wheeler

• Decision Date: 03 March 1890
• Citation: 20 A. 607,58 Conn. 429
• Parties: BIRDSALL v. WHEELER.
• Court: Connecticut Supreme Court

20 A. 607

58 Conn. 429

BIRDSALL

v. WHEELER.

Supreme Court of Errors of Connecticut.

March 3, 1890.

Appeal from superior court, Fairfield county; PHELPS, Judge.

H. S. Sanford, S. Judson, Jr., and D. C. Birdsall, for appellant. G. Stoddard and R. E. De Forest, for appellee.

FENN, J. This is an action on a statutory bond, substituted for attachments in two suits of personal property, in which, the plaintiff having recovered judgment, a new trial was ordered by this court, (Trubee v. Wheeler, 53 Conn. 458, 2 Atl. Rep. 319,) which resulted in a verdict for the defendant, and the plaintiff appeals.

The conclusion which we have reached renders it necessary for us to examine but two of the many reasons of appeal. The plaintiff, in writing, requested the court to charge the jury "that the defendant, having executed a bond containing a recital that the estate of Georgia V. Alden was attached in said suits, is estopped from claiming that no estate was attached in which said Alden had an interest." The court did not so charge, but instructed the jury to the contrary effect, that the two prominent questions in the case were whether, at the time of the attachment, Mrs. Alden had any valuable interest in the property, or any part of it, and, if so, of what value it was; and that on both these questions the burden of proof was on the plaintiff, and that she must show that it preponderated in her favor. The court, further on in the charge. in reviewing the evidence, said: "There is other evidence, however, on the question of title on which the plaintiff largely and perhaps mainly relies, which is contained in the instrument itself on which the suit is brought; and that is, a recital which expressly declares that the property attached was the property of Mrs. Alden. The defendant signed that instrument, the contents of which he is presumed to have known, and that declaration, especially in the absence of contra diction or explanation, should be taken most strongly against him. It is an explicit and unequivocal statement, written on the face of a solemn instrument under seal, which constitutes an admission against his interest in a matter of the highest importance to both the plaintiff and himself, which he would not have been likely to make if he had any doubt of its truth. If it had been pleaded as an estoppel, it would have been absolutely conclusive on this point against the defendant. As it was not so pleaded, it must be considered by you as merely evidence in the cause, to which it will be your duty to give the full weight to which it is properly entitled. In view of this, and of such other evidence on this point as has been offered and received in the case, you will say whether, at the time the property was attached, Mrs. Alden was the owner of it, or of any valuable interest in it. If you find she was not, your verdict should be for the defendant." At the conclusion of the charge, a recess having been taken, the plaintiff, in view of the statement of the court, moved to amend the pleadings by adding as a replication that the defendant was estopped by the recital in the bond. To this the defendant objected, and the court refused to allow the amendment "because it then appeared that the recital was so qualified as to destroy its force by the return made by the officer on the original writ, which return had not been offered in evidence, and was merely referred to in the recital of the bond." Subsequently, the jury having come into court and asked for information, one of them saying, "What we don't seem to understand is, why Mrs. Alden should give a bond if she hadn't any property," the court in the course of such further instruction said, "It is necessary for you to find that Mrs. Alden, at the time the attachment was made, either owned the property or had some valuable interest in it, and the burden of proving that is on the plaintiff;" and this was, in substance, later on, repeated. The dissolution of an attachment by the substitution of a bond is a strict statutory proceeding. Gen. St. §§ 929-934, which is the same as the former statute,—Revision 1875, p. 406. It is an express condition precedent of the application that estate shall have been attached, or debts or effects taken, by process of foreign attachment. A form of application is provided in the statute, and contains an allegation by the applicant that "the following estate has been attached," and "that he is desirous that said attachment be dissolved." The form of the bond is also prescribed, and commences, "Whereas the estate" of the applicant "has been attached," and reference is further made to "said attached property" and "said attachment." The bond in suit follows closely the language of the statute. Clearly, there could be no valid attachment upon process against the defendant unless the defendant in the suit had an attachable interest in the property. And that the law should constrain the plaintiff to accept as a substitute a bond at the instance of a person having no title or interest, and therefore an instrument without validity; should take the property from the hands of the officer and the custody of the law, under color of law, and restore it to one against whom, even after such restoration, no presumption of any ownership or interest in the property would exist, casting upon the plaintiff, when forced to resort to the obligation which the law against his will compelled him to receive, the onus of showing that it was not worthless, and that the defendant in the original suit was not a mere impostor without standing in the very forum whose jurisdiction he had himself solemnly invoked,—is as far from our comprehension as it was from that of the doubting juryman, and those of his associates for whom he spoke. Clearly, as we think, the defendant in this suit is estopped from claiming that no estate was attached in which the defendant in the...