Brown v. Ball
| Decision Date | 06 January 1915 |
| Docket Number | 1905 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Charles A. Pollock, J.
From an order vacating an order of arrest issued in a civil action plaintiff appeals.
Affirmed.
Taylor Crum, for appellant.
The affidavits upon which an order is made should be filed promptly with the clerk after having been submitted to the judge. The writ issues upon the judge's order, which is based upon such affidavit. Wert v. Strouse, 38 N.J.L. 184.
Where the complaint states facts sufficient, it is competent to make it a part of the affidavit for the order of arrest. Ligare v. California Southern R. Co. 76 Cal. 610, 18 P. 777; Ex parte Howitz, 2 Cal.App. 752, 84 P. 229.
A new cause for arrest cannot be set up as a defense against a motion to vacate the order, where the same was not originally set forth. Cady v. Edmonds, 12 How. Pr. 197.
Such is the mere exception to the rule, but it does not apply in this case. Scott v. Williams, 23 How. Pr. 393.
Where one injured sues for the tort, his election to bring such suit affirms the contract set forth, as a continuing obligation. Sonnesyn v. Akin, 14 N.D. 257, 104 N.W 1026; Thompson v. Thompson, 10 N.D. 567, 88 N.W. 565.
Where the cause of action and the ground for arrest are identical the whole matter should go to the jury, unless, upon motion to vacate the order of arrest, the proof strongly preponderates in favor of the defendant. Frost v M'Carger, 14 How. Pr. 131.
Even if the action sounded in tort, the contract was not eliminated from the case. Sonnesyn v. Akin, 14 N.D. 257.
Whether the action is merely for deceit, or is brought to set aside the contract and recover back the money loaned under it, the plaintiff was entitled to the order of arrest and the defendant can only be relieved by establishing his defense upon the trial. Nelson v. Blanchfield, 54 Barb. 630.
The truth or falsity in an action of tort, should never be decided upon a motion. Barret v. Gracie, 34 Barb. 20; Union Bank v. Mott, 6 Abb. Pr. 318; Stelle v. Palmer, 7 Abb. Pr. 181.
It is not a ground for vacating the order, that the case made by the complaint varied from that made by the affidavits, if the affidavits are in themselves sufficient, and disclose a ground of arrest consistent with the allegations of the complaint. McBride v. Langan, 18 N.Y. Civ. Proc. Rep. 201, 10 N.Y.S. 552, 554; Humphrey v. Hayes, 94 N.Y. 594.
In such a case it is not necessary for plaintiff to show defendant's insolvency. Defendant does not deny that he transferred his property to his wife; he merely denies wrong intent. This presented no issue upon the motion. Nothing could condone defendant's fraud except plaintiff's acceptance of payment of the claim. McClure v. Levy, 22 N.Y.S. 1006; Nelson v. Blanchfield, 54 Barb. 630.
Watson & Young, and E. T. Conmy, for respondent.
The statute authorizing arrest in civil actions is a harsh one; it is penal in its nature, and those who invoke its aid must bring themselves strictly within its terms. The facts upon which the order is asked must appear to the court; that is, must be sufficient and must bring the applicant clearly within the statute. Kaeppler v. Red River Valley Nat. Bank, 8 N.D. 411, 79 N.W. 869; Thompson v. Thompson, 10 N.D. 568, 88 N.W. 565; Clarke v. Lourie, 82 N.Y. 580; Liddell v. Paton, 67 N.Y. 393; Wright v. Brown, 67 N.Y. 1; Towle v. Richardson, 63 Vt. 96, 20 A. 925; Spice v. Steinruck, 14 Ohio St. 213.
If the affidavit is based in any degree upon information and belief, the grounds therefor must be set forth fully in order to make it appear, and to enable the court to determine whether or not such belief is well founded and reasonable. Moore v. Calvert, 9 How. Pr. 474; Dreyfus v. Otis, 54 How. Pr. 405; Mechanics' & Traders' Bank v. Loucheim, 55 Hun, 396, 8 N.Y.S. 520; Whitlock v. Roth, 5 How. Pr. 143; Crandall v. Bryan, 15 How. Pr. 48; City Bank v. Lumley, 28 How. Pr. 397; Pierson v. Freeman, 77 N.Y. 589; People ex rel. Hackett v. Wayne Circuit Judge, 36 Mich. 334; Kaeppler v. Red River Valley Nat. Bank, 8 N.D. 412, 79 N.W. 869.
Plaintiff's showing of facts is not sufficient; it is not reasonable; it is not well founded; it cannot sustain the order. Martin v. Gross, 24 Jones & S. 512, 4 N.Y.S. 337; Markey v. Diamond, 46 N.Y. S. R. 283, 19 N.Y.S. 181, 1 Misc. 97, 20 N.Y.S. 847.
Where the complaint is made a part of the affidavit for the order of arrest, and such affidavit refers to such complaint as "stating a good and sufficient cause, as fully appears from the verified complaint," such affidavit is insufficient, because it merely states the opinion of affiant, and not a statement under oath of the truth of the matters set forth in the complaint. Peterson v. Nesbitt, 11 Cal.App. 370, 105 P. 135.
An affidavit failing in any essential particular to meet the requirements of the law is insufficient to give the court jurisdiction. Ex parte Yonetaro Fkumoto, 120 Cal. 316, 52 P. 726; Neves v. Costa, 5 Cal.App. 111, 89 P. 860; Hall v. Justice's Ct. 5 Cal.App. 133, 89 P. 870.
Such affidavits must be filed with the clerk of court at the time and in the manner provided by statute. Rev. Codes 1905, § 6892; Phillips v. Wood, 31 Vt. 322; Parkhurst v. Pearsons, 30 Vt. 705; Wert v. Strouse, 38 N.J.L. 184.
Such affidavit must be in custody of the law; it must be such that perjury can be predicated upon it if false. Parker v. Ogden, 2 N.J.L. 146.
Where the contract of guaranty contains any condition precedent to the guarantor's liability, the performance of this condition must be alleged in the complaint against the guarantor. Mickle v. Sanchez, 1 Cal. 200; 20 Cyc. 1487; Rev. Codes 1905, § 6890, P 4, § 6892.
The affidavit must make it appear that a good cause of action exists, or it must fail. Pindar v. Black, 4 How. Pr. 95; Muller v. Perrin, 14 Abb. Pr. 95; 3 Cyc. 934, 944; Hart v. Grant, 8 S.D. 248, 66 N.W. 323; Reinboth v. Ederheimer, 134 N.Y.S. 16; Vock v. Auterbourn, 66 Misc. 222, 122 N.Y.S. 1024; Parker v. Ogden, 2 N.J.L. 146; Schwenk v. Naylor, 17 Jones & S. 98; Sheridan v. Briggs, 53 Mich. 569, 19 N.W. 189.
On motion to vacate an order of arrest, the question is as to the existence of grounds of arrest, and not as to what plaintiff believes. 3 Cyc. 971; Sonnesyn v. Akin, 14 N.D. 256, 104 N.W. 1026; 3 Elliott, Ev. § 2137, p. 636; Nelson v. Grondahl, 12 N.D. 133, 96 N.W. 299; Hoy v. Duncan, 1 Jones & S. 555.
If the facts set forth are not sufficient to call into exercise the jurisdiction of the court, then, even though the order has issued, the sufficiency of the affidavit may be questioned, for it was never judicially passed upon. Wachsmuth v. Merchants' Nat. Bank, 96 Mich. 426, 21 L.R.A. 278, 56 N.W. 9; Fischer v. Langbein, 103 N.Y. 84, 8 N.E. 251; Bonesteel v. Bonesteel, 28 Wis. 245; Marble v. Curran, 63 Mich. 283, 29 N.W. 725; Mudrock v. Killips, 65 Wis. 622, 28 N.W. 66; Bryan v. Congdon, 29 C. C. A. 670, 57 U. S. App. 505, 86 F. 221; Whitlock v. Roth, 5 How. Pr. 143; Lay v. Superior Ct. 11 Cal.App. 558, 105 P. 775; 3 Cyc. 934.
On motion to vacate order of arrest, the affidavit cannot be amended. Jones v. Platt, 60 How. Pr. 73; Adams v. Mills, 3 How. Pr. 219; Howe Mach. Co. v. Lincoln, 24 Kan. 123; 3 Cyc. 949-950.
It clearly appears from all the records in the case that defendant has not been guilty of any fraud, and the action must fall. Sniffen v. Parker, 8 N.Y. Civ. Proc. Rep. 393; Frost v. M'Carger, 14 How. Pr. 131; McClure v. Levy, 68 Hun, 525, 22 N.Y.S. 1006; Hoy v. Duncan, 1 Jones & S. 555; Lorillard F. Ins: Co. v. Meshural, 7 Robt. 308; Tallman v. Whitney, 5 Daly, 505; Royal Ins. Co. v. Noble, 5 Abb. Pr. N. S. 54; Levins v. Noble, 15 Abb. Pr. 475; Griswold v. Sweet, 49 How. Pr. 171; Stuyvesant v. Bowran, 3 Abb. Pr. N. S. 270, 34 How. Pr. 51; Blakelee v. Buchanan, 44 How. Pr. 97; Claflin v. Frank, 8 Abb. Pr. 412; Merritt v. Heckscher, 50 Barb. 451; Thompson v. Thompson, 10 N.D. 564, 88 N.W. 565; Caldbeck v. Simanton, 82 Vt. 69, 20 L.R.A. (N.S.) 844, 71 A. 881.
A party cannot sustain an action of this character where no harm has come to him; deceit and injury must concur. Fuller v. Hodgdon, 25 Me. 243; Alden v. Wright, 47 Minn. 225, 49 N.W. 767; Sonnesyn v. Aikin, 14 N.D. 256, 104 N.W. 1028; McKernan v. McDonald, 27 N.J.L. 541; Griswold v. Sweet, 49 How. Pr. 171.
Where the evidence is capable of an interpretation which makes it as equally consistent with defendant's innocence as with his guilt, that meaning must be placed upon it which accords with his innocence. 20 Cyc. 121, 123; Nelson County v. Northcote, 6 Dak. 378, 6 L.R.A. 230, 43 N.W. 897; Anderson v. Hunt, 55 How. Pr. 336.
This is an action to recover damages for fraud and deceit. At the time of the commencement of such action plaintiff applied for and obtained an order of arrest under our arrest and bail statute, pursuant to which order the defendant was arrested and held to bail in the sum of $ 1,500. He immediately furnished such bail, and thereafter moved the district court to vacate the order of arrest, which motion was granted after due hearing and consideration, and the order vacated. Plaintiff appeals from such order, serving with his notice of appeal the following statement of errors of law and insufficiency of the evidence, to wit:
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