Sonnesyn v. Akin
| Decision Date | 28 May 1903 |
| Docket Number | 6731 |
| Citation | 97 N.W. 557,12 N.D. 227 |
| Court | North Dakota Supreme Court |
It was strongly urged by counsel for appellant in their petition for a rehearing, and also upon the reargument, that this court, in holding that the sixth statutory ground for attachment, viz., "when the debt upon which the action is commenced was incurred for property obtained under false pretenses," applies only in actions upon a contract indebtedness, and is not applicable in an action to recover damages for torts, "misconstrued the statute, and disregarded the express language of the statute in defining the term 'debt.'" It was argued that "the legislature of this state has specifically defined the word 'debt,' and has adopted the very broadest definition thereof, and has discarded the technical meaning thereof." The conclusion for which counsel contend is that Counsel are in error in stating that the legislature has specifically defined the meaning of the word "debt," and also in the contention that the words "debt" and "obligation" are synonymous. The most that can be said is that the terms "creditor" and "debtor" have been defined. The statute nowhere defines the term "debt." The argument that the word "debt," as used in the statute under consideration, should have any other than its ordinary meaning, and should be treated as synonymous with "obligation," has no other basis than the fact that the words "debtor" and "creditor" have been defined by the legislature; and because these words have been extended beyond their ordinary and natural meaning, we are asked to say that the legislature has also defined the term "debt," and broadened its meaning, although, as already stated, there is no attempt at a legislative definition of the term debt. To make it clear that the legislature has not defined the word "debt," it will be necessary to refer to the several provisions of the statute which are pertinent, and upon which counsel rely. Sections 5047, 5048, Rev. Codes 1899, read as follows:
Chapter 96, Civil Code, which includes the sections just quoted, relates to fraudulent instruments and transfers. It is not open to question that under the above sections the terms "debtor" and "creditor" have their usual signification; that is, one from whom or to whom a debt is due, using the word "debt" according to its common meaning. The particular provision upon which counsel rely to sustain their contention that "debt" and "obligation" are synonymous is contained in section 5113, Rev. Codes 1899, which is a part of chapter 99 of the Civil Code, devoted to definitions and general provisions. This section reads as follows: "Except as defined and used in chapter 96 of this Code, every one who owes to another the performance of an obligation is called a debtor and the one to whom he owes it is called a creditor." Section 3762, Rev. Codes 1899, defines an obligation as follows: "An obligation is a legal duty by which a person is bound to do or not to do a certain thing." Section 3763, Rev. Codes 1899, defines the manner in which an obligation may arise. It reads as follows: "An obligation arises either from: (1) The contract of the parties; or (2) the operation of law." Chapter 43 of the Civil Code relates to obligations created by contract, and chapter 44 relates entirely to obligations imposed by law. Section 3940 of this chapter provides that "every person is bound without contract to abstain from injuring the property of another or infringing upon any of his rights." The remaining sections of this chapter relate to liabilities for breaches of the duties imposed by the above section; that is, for the various kinds of tort, including deceit. An examination of the several sections above quoted makes it plain that the legislature has broadened the meaning of the words "debtor" and "creditor" so as to include all persons from whom or to whom obligations are due, whether arising from contract or imposed by law; but none of these provisions define the term "debt," or furnish ground for the contention that "debt" and "obligation" are synonymous. It will be conceded that the common and ordinary meaning of the term "debt," in legal acceptation of the term, is an obligation resting upon contract, either expressed or implied. So, too, it may be said that a debtor is one who owes a debt; and creditor, one to whom a debt is due. The legislature has seen fit to call all persons debtors who owe obligations, instead of all persons who owe debts, and to call all persons to whom obligations are due creditors, instead of all persons to whom debts are due. These statutory definitions, however, do not touch the meaning of the word "debt." They merely enlarge the class of persons who shall be "called" debtors and creditors. They neither enlarge nor restrict the meaning of the word "debt." Aside from the statute, a debtor would be one who would owe a debt. Under the statutory definitions, one would be classified as a debtor if he owned an obligation, whether the obligation be one resting upon contract, and therefore a debt proper, or whether it be one merely imposed by law. In either event he would be a debtor. Under the statutory definitions of a debtor, it is not necessary to owe a debt. It is sufficient if one owes an obligation imposed by law. Every debt, however, is an obligation, but every obligation is not a debt. "Obligation" is the broader term; "debt," the narrower. The term "obligation" includes all debts. The term "debt" does not include all obligations, but only that particular kind of obligations known as "debts." The statement, therefore, that the legislature has specifically defined the term "debt," and that the term "debt" is synonymous with the word "obligations," is not sustained by the statute.
But our conclusion that the sixth ground of attachment does not apply in action to recover damages for torts does not rest wholly upon the fact that the word "debt," standing alone in its usual and ordinary sense, imports an obligation resting upon contract. This is its common meaning. It was said in Minga v. Zollicoffer, 23 N.C. 278 at 279, See, also, Hart v. Barnes, 24 Neb. 782 at 785, 40 N.W. 322. The word "debt," however, also has an uncommon meaning, covering all kinds of obligations, and if it appeared that the word was used by the legislature in an unusual sense, it would be our duty to give it effect according to that intention, for words are to be given the effect which the legislature intended they should have, whether it be their usual or unusual meaning. See New Jersey Insurance Co. v. Meeker, 37 N.J.L. 282. But we think that it is not at all uncertain, for reasons which will hereafter appear, that the legislature used the word "debt" in its usual sense. The statute provides that the plaintiff may have the defendant's property attached "when the debt upon which the action is commenced was incurred for property obtained under false pretenses." To make this ground of attachment available for seizing defendant's property, it must appear, therefore, not only that his action is commenced upon a debt, but also that his debt is of the particular kind described, namely, a debt "incurred for property obtained under false pretenses." It is not enough that the action is based upon a debt. It must be a debt which answers the requirements of the statute in the descriptive phrase; that is, a debt "incurred for property obtained under false pretenses." If it be not that kind of a debt, the action will not sustain an attachment under the sixth ground. This ground of attachment has been in force in this jurisdiction for over twenty years, and during all this time the debt essential to sustain an attachment has been described as a "debt incurred for property obtained under false pretenses." Chapter 32, p. 36, Laws 1881 first authorized an attachment when "the debt was incurred for property, obtained under false pretenses." This ground was re-enacted without change in the Compiled Laws of Dakota of 1887 (subdivision 3 of section 4995), and later it was embodied in the Revised Codes of 1895 as subdivision 6 of section 5352, in which form it now exists. Up to the year 1897 the remedy by attachment was not generally available in this jurisdiction in tort actions, upon any ground. Prior to that time a writ could be issued only "in an action on a contract or judgment for the recovery of money only, or for a wrongful conversion of personal property." See section 4993, Comp. Laws Dak. 1887, and section 5352, Rev. Codes 1895. Chapter 30, p. 33, Laws 1897, amended the last named section by adding to the actions in which an attachment might issue actions "for damages whether...
To continue reading
Request your trial