Cross v. McMaken

• Decision Date: 11 January 1869
• Citation: 17 Mich. 511
• Court: Michigan Supreme Court
• Parties: Samuel Cross et al. v. E. V. McMaken

17 Mich. 511

Samuel Cross et al. v. E. V. McMaken

Supreme Court of Michigan

January 11, 1869

Heard January 6, 1869 [Syllabus Material]

Error to St. Joseph circuit.

McMaken plaintiff below, sued out a writ of attachment against Cross and McDowell.

The affidavit upon which the writ was issued is in the words following:

"STATE OF MICHIGAN, "St. Joseph County.

ss.

"R W. Melendy, being duly sworn, says that he makes this affidavit for and in behalf of E. V. McMaken, of the city of Toledo, state of Ohio, and that Samuel Cross and William McDowell, copartners, doing business under the firm name and style of Cross & McDowell, at Leonida, in said county of St. Joseph, who are the defendants named in the annexed writ of attachment, are justly indebted to the said E. V. McMaken, plaintiff in said writ, upon express contract, in the sum of $ 619.48, as near as may be, over and above all legal set-offs. And this deponent further says, that he has good reason to believe that the said defendants, Samuel Cross and William McDowell, are about to assign and dispose of their property, with intent to defraud their creditors, and further says not.

"Subscribed and sworn to before me, this 14th day of January, A. D. 1868."

Defendants' property was duly levied upon, and judgment finally rendered against them in favor of plaintiff.

The only question raised by the record is as to the sufficiency of the foregoing affidavit.

Judgment reversed, with costs.

Wm. L. Stoughton, and H. F. Severens, for plaintiffs in error:

The principal question in this case depends upon the construction of our statute authorizing creditors to proceed by attachment against their debtors. Should the affidavit which is made a prerequisite to the writ, show that the debt sued for is due?

We insist that it must, and that the court below erred in holding the contrary.

The statute requiring the statement that the "debt is due," without reference to other sections, would seem in plain terms to require such averment in the affidavit: 2 Comp. L., § 4743.

The section is somewhat tersely drawn. A slight change in punctuation (putting the comma after the word due instead of the word contract) would make the interpretation plain, and conformable to what must have been the intention of the legislature. We claim that the fact that the punctuation is otherwise does not make the construction different. For the general rule is that punctuation is no part of a statute, and is not to be regarded in construction: Dwarris on Stat., 2d Ed., 601; 9 Gray 382.

2. By comparing the different sections with each other and construing them together (Buckley v. Lowry, 2 Mich. 418), our position is fortified and the meaning of the legislature clear. Section 1 authorizes the proceeding only "in the cases, upon the conditions, and in the manner provided in this chapter." Section 4 provides that the writ shall not issue "unless the amount stated in such affidavit as due to the plaintiff" should equal $ 100.

And the other provisions are framed upon the hypothesis that a case is made showing the debt to be due.

3. But if these considerations do not settle the question upon the letter of the statute, then we say that by implication the necessity of such statement is involved.

And what is implied is as much a part of the statute as if expressly written: 1 Black 55, 61.

To hold that a creditor may proceed in this way, without showing a cause of action, would lead to intolerable abuse of the statute and harassing of individuals.

4. But supposing the construction doubtful if the question were res integra, it is settled in this state by uniform practice and judicial decisions: Green's Prac., § 219; 2 Mich. 218; 3 Id. 531; 10 Id. 508; 1 Doug. 330; 2 Id. 93.

Johnson & Higby, for defendant in error:

The main question in this case is, whether the affidavit upon which the writ of attachment issued is sufficient to give the court below jurisdiction.

The word "due," in the phrase, "and that the same is due upon contract express or implied," is omitted.

In Wilson v. Arnold, 5 Mich. 98, this same question was raised, and though the case was disposed of upon another point, yet the court, in noticing this point, undertook to give the requisites of a sufficient affidavit under our statute. Justice Manning, who gave the opinion, says:

"It must be positively stated (in the affidavit), and not on information and belief only, that the defendant is indebted to the plaintiff, and the amount of such indebtedness, as nearly as may be, over all legal set-offs. It must also appear that the debt is on contract, express or implied, or on judgment; all these facts must be sworn to positively; not necessarily in the words of the statute, but in language equivalent to that of the statute."

In this statement the word "due" is not noticed, because, in the statute, it is not used in the sense contended for. It is not used in the sense that the time for the payment of the debt sworn to had elapsed, but used only in the sense of indebtedness generally. The object of this clause of the statute is to show the character of the indebtedness, and not that, by the terms of the contract, it had become payable--that is, expressed in the term, "is indebted."

That the word "due" is used in both senses, see 6 Peters 29.

As to the cases where courts have held that affidavits using language equivalent to that required by the statute are good, see Drake on Attachment, § 106; 15 La. 429.

In this case, where the statute required the affidavit to state "the amount of the sum due," and the plaintiff swore that the defendant was "really indebted" to him in a certain sum, it was held that the expression conveyed the idea of a debt actually due and payable, and was sufficient.

OPINION

Christiancy J.:

The only question in this case is that of the sufficiency of the affidavit upon which the writ of attachment issued.

The statute (Comp. L., Ch. 140, § 2) requires the affidavit...