First Nat. Bank of Cheyenne v. Swan

• Decision Date: 05 February 1890
• Parties: FIRST NAT. BANK OF CHEYENNE v. SWAN et al
• Court: Wyoming Supreme Court

23 P. 743

3 Wyo. 356

FIRST NAT. BANK OF CHEYENNE v. SWAN et al

Supreme Court of Wyoming

February 5, 1890

Error to district court, Laramie county; W. L. MAGINNIS, Judge.

Action in attachment by the First National Bank of Cheyenne against Alexander H. Swan, Thomas Swan, and F. W. Lafrentz, on a promissory note. There was an order discharging the attachment, and plaintiff brings error. Reversed.

Judgment reversed and cause remanded.

Corlett Lacey & Riner and C. N. Potter, for plaintiff in error.

Bryan Seevers & Stewart and Hugo Donzelmann, for defendants in error.

SAUFLEY J.

OPINION

SAUFLEY, J.

The First National Bank of Cheyenne, plaintiff below and in error, sued the defendants, Alexander H. Swan, Thomas Swan, and F. W. Lafrentz, on a promissory note for $ 25,000, executed on the 28th day of April, 1887, and payable 30 days after date. Contemporaneously with the institution of the suit, an affidavit for an attachment of the property of each defendant was made and filed. In the court below, a motion to discharge the attachment was made, which was based upon an alleged insufficiency of the affidavit, and also upon affidavits intended to controvert the grounds of attachment. Upon hearing, it was adjudged that each allegation on which the writ was issued was untrue, and a conformable judgment was entered. It will be conducive to a clear understanding of the reasons upon which this opinion is based to quote those grounds of attachment which are relied upon to sustain the order: "This affiant has good reason to believe, and does believe, that the said defendants have assigned, removed, and disposed of a part of their property with intent to defraud creditors;" and similar averments as to each defendant. "This affiant has good reason to believe, and does believe, that the said defendants fraudulently contracted the debt to recover the payment of which the above-entitled action has been brought." "This affiant has good reason to believe, and does believe, that the said defendants fraudulently incurred the obligation, to recover the payment of which the above-entitled action has been brought."

It will be perceived that these several charges are in verbal conformity to the statutes. Section 2870 reads: "An order of attachment shall be made by the clerk of the court in which the action is brought in any case mentioned in the preceding section, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing--First, the nature of the plaintiff's claim; second, that it is just; third, the amount which the affiant believes the plaintiff ought to recover; and, fourth, the existence of any one of the grounds for an attachment enumerated in the preceding section, or that the affiant has good reason to believe, and does believe, that some one or more of said grounds (stating which one) exists."

In this case the attaching creditor adopted the more cautious method of imputing fraud to the defendants. The charge is simply one of belief and its reasonableness. Nevertheless, the language of the statute is followed. The initial inquiry presented by the motion to discharge is, is this sufficient? The question has been discussed and decided in several jurisdictions, but I have found no opinion based upon attachment statutes similar in all respects to our own. In the ninth and twelfth Ohio State Reports, (Coston v. Paige, 9 Ohio St. 397; Harrison v. King, 9 Ohio St. 388; Emmitt v. Yeigh, 12 Ohio St. 335,) the state after whose remedial jurisprudence ours was fashioned, it is held that the language of the statute may be followed. In Kentucky, California, and in other states the same opinion is held. But, without an opportunity for an examination of the entire line of precedents, it is believed that the opinions of courts so holding are based upon statutes differing in one essential respect from the Wyoming statute, unless it be proper to except a portion of the Wisconsin statutes, which are construed by the supreme court of that state in Davidson v. Hackett, 49 Wis. 186, 5 N.W. 459, and which will be subsequently considered. Sections 2869 and 2870 are exact transcripts of sections 5521 and 5522, Ohio Code, with the exception that the latter do not contain the concluding provision of subdivision 4, § 2870, Code Wyo., which allows the affiant to state his belief of the existence of a cause of attachment, and that he has good reason for the belief.

It cannot be questioned that, when the ground of attachment is a single and complete fact, substantive in its nature, and not dependent on associate facts or circumstances to establish its existence, it will be sufficient to state that ground in the words of the statute. Non-residency and foreign corporate existence may be said to be of this type. Further, when the ground of attachment consists of both an act and an intent, and is of such nature that the approved rules of pleading in civil actions would allow an averment that the act was done, or about to be done, with such intent, without formally setting forth the facts illustrative of that intent, in such case the language of the statute may be followed. Of this type are concealment to avoid the service of process, absconding with intent to defraud, and disposal of property with intent to defraud. In this last-mentioned type the substantive ground of complaint consists of two things: (1) The act done, which can be charged in direct language; (2) the purpose with which it is done, which is equally susceptible of direct averment. The evidence which may support the charge of intent need not, should not, be pleaded. The distinction between pleading the evidence which sustains the charge of a fact and pleading the facts which constitute a cause of complaint should be kept in mind. An intent--that is, a purpose, an aim, a design--is, in jurisprudence, whatever may be said of it in metaphysics, as much a fact as is a physical act performed. The one is the exertion of the power of the mind; the other, the exertion of the power of the body. The concurrence of the two, in the instances given, constitute the ground of attachment. But when the ground consists of an act done in a manner or for a purpose which makes the act obnoxious to good morals, and that act, thus united to the purpose, is described in the statute only by words of legal import implying conclusions of law from stated facts, then, notwithstanding some dicta to the contrary, I think it may be seriously doubted whether a bare recital of the words of the statute is sufficient. Of this type is the ninth statutory ground of attachment, that the defendant has fraudulently or criminally contracted the debt or incurred the obligation. In a purely technical or confined sense, an affidavit for an attachment is not a pleading. In a broader and more rational view, it is a pleading, and is so denominated by the codes of procedure of some states. No reason can be assigned why the rules which tend to the production of a material, certain, and single issue in the altercations between the parties, commonly styled "pleading," should not prevail with equal force in the procedure for obtaining an attachment. Indeed, if a difference should exist there is not wanting some reason to hold that greater strictness of allegations should be required when the extraordinary remedies of the law are invoked than when the ordinary remedies are sought. The rule of justice which forbids the taking of property, except according to the "law of the land," means, as is well understood by the profession, that there shall be no taking, no condemnation, before hearing. While a seizure under attachment is not a "taking," in the sense referred to, it is nevertheless a divestiture of possession, --one of the elements of a complete title. If by the policy of our laws the courts will not so much as inquire whether a citizen's property shall be taken unless the accusation or complaint which is to authorize the taking is set forth in the way experience hath demonstrated to be wise, may it not, upon fair analogy, be held that, when a seizure--a degree of taking--is to be made before hearing, the accusation or complaint should at least conform to the approved rules of pleading?

Be this as it may, it is obvious that if a petition, setting forth a cause of action against a defendant, for fraudulently contracting a debt or criminally incurring an obligation, should merely charge, in the language of the statute, that the defendant fraudulently contracted the debt, or criminally incurred the obligation, it would be held bad on demurrer. No citation of authority or process of elaborate reasoning is needed to show that, in such case, the charge of fraud or criminality is but the conclusion of the pleader. The court would require of him to state the facts which are supposed to constitute the fraud or crime. If this be a reasonable requirement, and it is exacted before the court will even hear the evidence upon which the plaintiff proposes to take the property of the defendant, or, indeed, before the court will compel the defendant to answer the accusation, why is it not the law that the plaintiff in attachment shall conform to the same rule before he seizes the property of the defendant? Upon what principle of jurisprudence is a ministerial officer authorized to issue a writ for the seizure of property upon an allegation in an affidavit which, if embodied in an action proper, a judicial officer would not require a defendant to answer?

It is one of the elemental rules that there shall be a correspondence between the allegata and the probata. If the naked charge that a defendant criminally contracted a debt be an allegation of fact, as distinguished from a conclusion of law and of fact, then it would...