Johnson v. Johnson

• Decision Date: 01 January 1887
• Citation: 31 F. 700
• Parties: JOHNSON v. JOHNSON.
• Court: United States Circuit Court, District of Kentucky

31 F. 700

JOHNSON v. JOHNSON.

United States Circuit Court, D. Kentucky.

1887

William Lindsey and J. D. Hunt, for plaintiff.

James S. Pirtle and J. K. Goodloe, for defendant.

BARR J.

The plaintiff, who is the brother of the defendant, brought suit in the state court for $10,000 loaned money, and sued out an attachment which has been levied. The defendant, who is a non-resident of the state, was constructively summoned entered his appearance, and removed the case to this court. He now moves to quash the attachment because, as he alleges the affidavit upon which it was issued was not made by the plaintiff, or by his agent or attorney. The affidavit upon which the clerk issued the attachment was in fact made by Henry V.

Johnson another brother, who stated in it that he was the agent and attorney of the plaintiff, who was then absent from the county and state. This affidavit is in form, and states good statutory grounds for the attachment.

There are three questions arising on this motion: (1) Whether the allegation in the affidavit that Henry V. Johnson was the agent and attorney of the plaintiff is an issuable fact. (2) If so, was he at the time the agent or attorney of plaintiff? (3) If not the agent or attorney of plaintiff, will plaintiff's subsequent ratification of the acts of Henry V. Johnson be sufficient to sustain the issue of the attachment? The Code of Practice authorizes the issue of an attachment upon the affidavit of the plaintiff, or his agent or attorney, and it is quite clear a defendant may deny the fact that the person making the affidavit is the plaintiff, or was his agent or attorney. This is because the Code only authorizes the issue of an attachment upon the affidavit of the designated persons.

A careful reading of the record and the affidavits satisfies me that Henry V. Johnson was not, at the time of the filing of the affidavit upon which the attachment issued, the authorized agent or attorney of plaintiff to make such an affidavit. Madison C. Johnson, Esq., died in Lexington on the seventh of December, 1886, and the defendant was one of his devisees. Mr. Henry V. Johnson, believing it was important that his brother, Junius W. Johnson, should obtain a lien upon defendant's interest in said estate before other creditors of the defendant, assumed, in the absence of his brother, the plaintiff, to bring this suit, and had an attachment issued upon his affidavit on the thirteenth of December, 1886. He (Henry V. Johnson) being the brother of both plaintiff and defendant, and having always attended to the plaintiff's law business, his action was not singular, but it was, I think, from the evidence before me, without authority. It is evident that plaintiff had not been consulted; nor had he any knowledge of the intention to bring the suit or sue out the attachment, prior to its being done. The fact of his (Henry V. Johnson's) relation to the parties, and that he had previously attended to all of the litigation which the plaintiff had, did not give him authority to sue out this attachment, or make him the agent or attorney of the plaintiff to swear to the necessary affidavit to obtain the attachment. It appears that after the bringing of this suit, and the issuance of the attachment, Henry V. Johnson informed the plaintiff fully of what had been done, and he ratified and confirmed his actions. Thus, although the suit was brought, and the attachment sued out, without previous authority, it was fully ratified and confirmed by plaintiff before defendant's motion to quash. The effect of this ratification is the important question.

The Code of Practice provides that 'an order of attachment shall be made by the clerk of the court, * * * if an affidavit of the plaintiff be filed in his office' setting out therein certain specified grounds. Section 196. And section 550 provides that 'any affidavit which this Code requires or authorizes a party to make, may, unless otherwise expressed, be made by his agent or attorney, if he be absent from the county'' which fact must be stated in the affidavit, and also that 'the affiant is agent or attorney. ' The Code designates the persons who may make the necessary affidavit. The right to make such an affidavit, if made by a person other than the plaintiff, comes from the relation which the affiant bears to the plaintiff; and this relation, under a proper construction of the Code, must exist at the time of the making of the affidavit, and suing out the attachment. The attorney or agent may make the affidavit by reason of their relation to the plaintiff, but the oath is not taken in a representative capacity, and hence the relation of attorney or agent should exist at the time. Indeed, the Code requires it to be so stated. The right, under certain circumstances, to attach a debtor's property as an indemnity, in advance of a judgment, is a statutory one, and statutes giving such rights should be construed strictly. Drake, Attachm. Sec. 84. If a subsequent ratification by a plaintiff of an affidavit which was made by an unauthorized person is sufficient, then the designation in the statutes as to who may make the affidavit is made practically nugatory, at the election of the plaintiff in whose name the suit is brought. In the meantime, the defendant whose property has been seized is without a responsible plaintiff to look to, until and unless the unauthorized act of the assumed agent or attorney is ratified.

It may be that if plaintiff had not ratified the action of Henry V Johnson, the bond which was executed would have covered some of the injury done, though this is not clear; but it certainly would not cover every kind of injury which might arise from an attachment. The civil law maxim, omnis ratihabitio retro trahitur et mandato aequiparatur, has been adopted by the common law. The courts have, however, recognized exceptions to this general rule,-- some of which are clearly defined,...