Estlow v. Hanna

• Decision Date: 14 June 1889
• Court: Michigan Supreme Court
• Parties: ESTLOW v. HANNA.

42 N.W. 812

75 Mich. 219

ESTLOW v. HANNA.

Supreme Court of Michigan

June 14, 1889

Certiorari to circuit court, Branch county; NOAH P LOVERING, Judge.

Assumpsit by Benjamin S. Estlow against William E Hanna. An attachment was issued, which the court refused to dissolve, and defendant obtained a certiorari.

LONG J.

A certiorari from this court to review the proceedings of the circuit court of Branch county in refusing to dissolve a writ of attachment. The writ was issued upon an affidavit charging that the debt was fraudulently contracted respecting which the suit was brought. The suit was brought upon three promissory notes. These notes were given by the defendants to three different parties, and signed by the plaintiff as surety. When they came due plaintiff paid and took them up, and on February 1, 1888, brought this suit by attachment upon them. The affidavit for the writ and the writ were regular in form, and the writ was levied by the sheriff of that county upon certain real estate of the defendant, and a copy of the writ served. On April 27, 1888, the defendant filed a petition for dissolution of the writ. Citation was issued, returnable May 3, 1888, and on that day the parties appeared, and, after witnesses were sworn, the court made the following finding of facts and conclusions of law: "(1) That the cause alleged in the affidavit for issuing the writ of attachment is that the debt for the recovery of which the suit is brought was fraudulently contracted. (2) The action was brought to recover the amount due upon three promissory notes hereinafter mentioned, which were signed by plaintiff as surety for the defendant, and which as surety he afterwards assumed and paid. Plaintiff claims that he was induced to sign such notes by reason of false and fraudulent representations made to him by defendant in reference to his financial condition. (3) As to the first of said notes, known as the 'Cooley Note,' dated April 20, 1876, upon which there is unpaid at date hereof the sum of $352.39, I find that there was no fraud or misrepresentation, and that the obligation of the plaintiff as surety thereto was not induced by fraud. (4) In reference to the second note, known as the 'Bidwell Note,' dated February 19, 1887, upon which there is unpaid at the date hereof the sum of $387.49, I find that the plaintiff was induced to sign the same as surety by reason of false and fraudulent representations made to him by the defendant in reference to his financial condition before and at the time of signing the note. (5) As to the third note, known as the Ford Note,' dated April 22, 1887, upon which there is due at the date hereof the sum of $327.78, I find that there was no further representations made by defendant to plaintiff as to his financial condition after signing the Bidwell note, and there was no evidence upon the subject whether in signing the Ford note he relied upon the representations made when he signed the Bidwell note. Conclusions of law: (1) That the obligation as surety to the Cooley note was not fraudulently contracted. (2) That the obligation of plaintiff as surety to the Bidwell note was fraudulently contracted. (3) that the indebtedness growing out of the Ford note was not fraudulently contracted. (4) That the motion to dissolve the attachment be, and the same is hereby, denied, with costs to plaintiff; and, further, I have filed an order in said cause denying the motion to dissolve such attachment, with costs to the plaintiff."

The sole contention is that under this finding of facts the court should have dissolved the writ, as it appears that the whole of the indebtedness sued upon was not fraudulently contracted. Sections 7986, 7987, How. St., authorizing writs of attachment, provide: "Any creditor shall be entitled to proceed by attachment against his debtor in the circuit court of the county in which the creditor or the debtor *** shall reside, *** in the cases, upon the conditions, and in the manner provided in this chapter." "Before any such writ of attachment shall be executed, the plaintiff, or some person in his behalf, shall make and annex thereto an affidavit stating that the defendant therein is indebted to the plaintiff, and specifying the amount of such indebtedness as near as may be over and above all legal set-offs, and that the same is due upon contract, express or implied, or upon judgment; and containing a further statement that the deponent knows, or has good reason to believe, either." Then follow the various statements that the defendant has absconded; has assigned, disposed of, or concealed his...