Weston v. Jones
| Decision Date | 18 April 1899 |
| Citation | 25 So. 888,41 Fla. 188 |
| Parties | WESTON v. JONES. |
| Court | Florida Supreme Court |
Error to circuit court, Columbia county; John F. White, Judge.
Action by Harold Weston against Calhoun Jones to foreclose a chattel mortgage. Defendant obtained a judgment, and plaintiff brings error. Reversed.
Syllabus by the Court
1. Under section 1656, Rev. St., defendant's affidavit, to the effect that he was not at the time plaintiff's attachment affidavit was filed indebted to plaintiff in the sum demanded, or any part thereof, tenders a proper traverse of the attachment affidavit as to the debt or sum demanded.
2. Upon a traverse in attachment of the debt or sum demanded, it is the duty of the court, under section 1656, Rev. St., upon seasonable application, in all cases where the issues have not already been made up in the main suit, to require the formal pleadings in the main suit to be made up, and the issues therein settled by special order, without reference to the time fixed by the rules or statutes for pleading in regular course, in order that the issues in the main case thus made up may be submitted to the court or jury along with the issues raised by the traverse of the special ground of attachment alleged.
3. Attachments in aid of foreclosures on personal property authorized by section 1640, Rev. St., are statutory chancery writs, issued by, returnable to, and under the control of the chancery court foreclosing the mortgage. The court from which such writ issues has full control over it and power to discharge it, if improvidently issued, to the same extent as it has power over other equitable writs; but the proceedings for its discharge must be taken under the rules of chancery practice, and not under statutory provisions relating only to general attachments at law.
4. Section 1656, Rev. St., regulating proceedings to dissolve attachments at law, has no application to attachments in aid of foreclosures on personal property authorized by section 1640, Id.
COUNSEL A. J. Henry, for plaintiff in error.
Plaintiff in error, on February 25, 1893, filed his bill in equity in the circuit court of Columbia county against defendant in error and one James E. Young, the purchaser of a portion of the mortgaged property, to foreclose a mortgage upon personal property executed by Jones to Weston on October 20, 1891. On the same day Weston's attorney filed his affidavit, alleging, substantially, that Jones was justly indebted to his client in the sum of $2,000, which was actually due; that the debt was evidenced by four promissory notes dated October 20, 1891 and secured by a mortgage of same date upon certain personal property, describing it; that a bill had been filed to foreclose said mortgage; that said property had remained in possession of Jones; and that affiant had reason to believe, and did believe, that the mortgaged property would be concealed, so that it would not be forthcoming to answer a demand in foreclosure. A bond on behalf of Weston was filed, payable to Jones, in the sum of $4,000, which, after reciting that Weston had filed a bill to foreclose the mortgage described in the affidavit, and had applied for an attachment in aid of foreclosure, was conditioned to pay all costs and damages the defendant Jones might sustain in consequence of improperly suing out said attachment. A writ of attachment was issued by the clerk, commanding the sheriff to attach and take into custody the property embraced in the mortgage, and hold same or so much thereof as could be found sufficient to satisfy Weston in the sum of $2,000 and costs, which was levied upon a portion of the mortgaged property. On March 13, 1893, Jones filed his affidavit, to the effect that Weston's attorney did not believe, or have reason to believe, that the mortgaged property would be concealed, so that it would not be forthcoming to answer a demand in foreclosure, and that affiant is not, and was not at the time of the filing of the attachment affidavit, indebted to Weston in the sum of $2,000, the amount demanded, or any part thereof. Weston moved to strike the latter clause of this affidavit, upon the ground that it was, in effect, a plea of nil debit, and therefore not a proper traverse of the attachment affidavit. The court denied this motion, and Weston then applied to the court for an order requiring formal pleadings to be filed as to the debt or sum demanded by him, which application the court also denied, and set the motion to dissolve for hearing on March 28, 1893. On the last-named date Jones made a formal demand for a jury to try the issues joined on the motion to dissolve, and the court directed the sheriff to summon a jury from the body of the county for that purpose. Upon the return of the sheriff, a jury was impaneled, and a trial entered upon, resulting in a verdict for Jones, as well upon his denial of the debt claimed as upon his denial of the special ground of attachment alleged. Weston moved for a new trial, upon the ground that the verdict was contrary to the evidence, the weight of the evidence, to law, and the charge of the court. This motion was overruled, and judgment upon the verdict was entered dissolving the attachment and adjudging costs against Weston, from which he sued out this writ of error.
The evidence introduced and proceedings had upon the trial before the jury are embraced in a bill of exceptions incorporated into the transcript of record. Errors are assigned upon the rulings denying the motion to require formal pleadings, refusing to strike the second clause of the traverse affidavit, denying the motion for a new trial, and admitting in evidence certain decuments and parol testimony objected to.
The proceeding by attachment was regarded by the court below and by the parties as a legal proceeding, subject to the rules prescribed by the Revised Statutes for general attachments at law, and the proceedings adopted for its dissolution were those prescribed by section 1656 of those statutes. As this was the theory upon which the case was tried below, we shall first consider if there be error in the proceedings from that standpoint. The section referred to (Rev. St. § 1656) reads as follows: Assuming that this section applies to the present proceeding, we hold:
I. That the motion to strike the latter clause of the traverse affidavit was correctly decided by the court below. The statute expressly authorizes a defendant in attachment to deny the truth of any allegation in plaintiff's affidavit, and this clause of defendant's affidavit was strictly a denial of the plaintiff's allegation as to the debt due, and was therefore entirely sufficient.
II. That the court should have granted plaintiff's motion to require formal pleadings to be filed as to the debt or sum demanded. The original act (section 5, c. 741, approved February 15, 1834), authorizing motions of this character to dissolve attachments by traverse, gave the courts no authority to require pleadings to determine the issues to be tried under a traverse of plaintiff's affidavit as to the debt due. It simply authorized the defendant to make oath, in writing, that the allegations of the plaintiff's affidavit were untrue, either as to the debt or sum demanded, or as to the special cause assigned for granting such attachment; and, upon tender of such oath, required the court, or a jury if demanded by defendant, to hear evidence upon the issue so presented, and, if the allegations of plaintiff's affidavit were not sustained and proved to be true, the attachment was required to be dissolved. This section of the act of 1834, with a subsequent modification authorizing either party to demand a jury upon trial of such motions, remained in force, controlling motions of this character, until the adoption of our Revised Statutes, in 1892. As, in ordinary attachments at law, the plaintiff's affidavit was and still is not required to state in detail the nature or character of the debt sued for, but simply in a general way that defendant is indebted to plaintiff in a certain sum of money, and the defendant's affidavit was and still is a simple denial of that general and very indefinite allegation of plaintiff's affidavit, it is quite evident that the real issue arising upon such a traverse, in cases where the issues had not been made up in the suit in which the attachment was sued out, could never be ascertained...
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