William Deering & Co. v. Warren

• Decision Date: 01 April 1890
• Citation: 44 N.W. 1068,1 S.D. 35
• Court: South Dakota Supreme Court
• Parties: WILLIAM DEERING & CO., Plaintiff/Respondent, v. J. G. WARREN. Defendant/Appellant.

1 S.D. 35

44 N.W. 1068

WILLIAM DEERING & CO., Plaintiff/Respondent,

v.

J. G. WARREN. Defendant/Appellant. South Dakota Supreme Court Appeal from Circuit Court, Hughes County, SD Hon. H. G. Fuller, Judge Charles H. Price, Titus E. Price Attorneys for appellant. Olin G. Reiniger, E. S. Martin, George C. Cooper Attorneys for respondent Submitted April 15, 1890; Opinion filed April 1, 1890

BENNETT, J.

This appeal is from an order of the circuit court of Hyde county, overruling a motion to dissolve an attachment. The affidavit for attachment is as follows:

“Olin G. Reiniger, attorney for the plaintiff in the above entitled action, being duly sworn, says that J. G. Warren, the defendant in the above entitled action, is justly indebted to the plaintiff, William Deering & Co., in the sum of one hundred and sixteen ($116) over and above all discounts and set-offs, which said sum is now due, and that a cause of action exists therefor in favor of said plaintiff, and against said defendant, amounting to the said sum of $116, the grounds of which are as follows: That heretofore, to-wit, on the 13th day of July, 1887, the said defendant, for value received, made, executed, and delivered to the said plaintiff his promissory note, whereby he promised to pay to the said plaintiff, on the first day of November, 1888, the sum of fifty dollars, with interest at the rate of eight per cent per annum from the date thereof, and that at the same time the said defendant made and delivered to the plaintiff his other certain promissory note, whereby he promised to pay said plaintiff the sum of fifty dollars on the 1st day of November, 1889, with interest at the rate eight per cent per annum. That no part of said notes have been paid. That this deponent derives his knowledge of the above facts by the admissions of defendant, and the possession of said notes for collection, and from statement from said plaintiff. That the defendant, J. G. Warren, is about to remove from the county of Hyde, Dakota Territory, where he now resides, with the intention of permanently changing his residence, and that the plaintiff has demanded security for his said claims of defendant, which was refused by defendant.

“[Signed] OLIN G. REINIGER.”

Upon this affidavit a writ of attachment was issued July 23, 1889, and levied upon certain property of the defendant and appellant.

On November 25, 1889, appellant moved to dissolve the attachment, based upon the following grounds: First. That the allegation in the affidavit for attachment, “that the defendant was about to remove from Hyde county with the intention of permanently changing his residence, is false.” Second. That at the time plaintiff demanded security for his claim, and at the time the affidavit for attachment was made, and the warrant of attachment was levied, the plaintiff had two chattel mortgages on property of the defendant of sufficient value to pay its claim. Third. That it is not alleged in the affidavit for attachment that the security held by the plaintiff for the payment of its claim had become valueless or insufficient to satisfy said claim. Fourth. That a part of the property attached, to-wit, one Deering binder with bundle carrier, No. 11,821, and 20 acres of wheat, is included in two chattel mortgages which were given to secure the payment of plaintiff’s claim, and no warrant of attachment could be legally levied upon said property so long as the same was held by such mortgages. Fifth. That the affidavit of attachment is not made by plaintiff, and does not show that it is made by any person having authority to make the same, and does not show that it was made by any person having personal knowledge of the facts therein stated. Sixth. That the affidavit for attachment does not contain any of the allegations required to be set forth by Section 4995, Comp. Laws. Seventh. That the affidavit for attachment shows upon its face that a part of the debt which plaintiff seeks to secure was not due at the time the affidavit was made, and as a matter of fact no part of said debt was due. Eighth. That the provisions of the statute relating to the attachment of property before a debt is due have not been complied with, in that the affidavit for attachment contains none of the allegations required by Section 5014 of the Compiled Laws. Ninth. That the clause of the statute upon which the affidavit for attachment is based is unconstitutional and inoperative. The motion to dissolve was overruled by the court, and defendant appeals. The assignments of error are substantially the same as made in the motion to dissolve, and need not be set out in full.

The proceeding by attachment is purely statutory,—the creature of the written law. Hence but little assistance can be obtained in discussing this peculiar remedy by looking beyond the statute by which it is authorized. The force and effect of attachment laws can only be tested by the principles of statutory construction. They have no features peculiar to the common law, and are so far derogatory to common rights that an appeal to this remedy is not specially favored by the courts. Attachment amounts to an execution in advance of trial and judgment. Property is taken, under legal process, at the instance of one, without even the claim of title, from the possession of another, whose title is unquestioned. It is in consideration of the harshness and extraordinary character, as well as the purely statutory authority, of this remedy, that courts have generally been inclined to construe its provisions strictly in favor of those against whom it may be employed. When, however, an attachment issues, the court or tribunal exercising this jurisdiction is governed by certain rules which affect its powers to hear and determine the issues, which are of general application to this provisional remedy, and by these rules many requirements of the statutes may be construed. In nearly all of the states and territories an affidavit alleging certain facts is required as authority for issuing the warrant, and whenever this is so no court can proceed to judgment that will affect the property, rights, or credits against which it is directed, unless jurisdiction is obtained by the statement of sufficient grounds for attachment in the affidavit. There is no more right to issue it without the prescribed affidavit than to issue an execution without a judgment. Whatever relates to the affidavit is fundamental, and is the foundation for the jurisdiction of the court in attachment proceedings. It is the affidavit which brings the power of the court into action, and it is always the defendant’s right, and it may become that of others, to question the proper exercise of jurisdiction in the particular case through attachment, because of the want of the legal foundation for issuing the writ. In every affidavit for an attachment there are two distinct parts: One relates to the plaintiff’s cause of action, and the amount due from defendant to him; the other, to facts relied on as grounds for obtaining the writ. Both, though distinct and separate; are required in order to make the affidavit complete, and to give the court jurisdiction to issue the writ. After a writ has been issued, there are two grounds upon which it may be dissolved: One is when the facts alleged upon which the writ was issued are untrue; the other is when some of the requirements of the statute have not been fulfilled. There are also two distinct modes of procedure: One is by a traverse of the facts alleged in the affidavit as grounds of attachment; and the other by motion to vacate or dissolve, because of irregularities in the procedure. The former raises the issues of fact, and the latter issues of law. When the attachment is met by a denial of the truth of the allegations in plaintiff’s affidavit, an issue is tendered on the merits of the attachment, and if the alleged grounds upon which the attaching proceedings are based are found untrue, the attachment should be dissolved, and the property attached relieved from the lien. Irregularities are generally apparent on the face of the papers, and these include the insufficiency of the facts stated, and all other matters going to the jurisdiction as well as of other papers filed in the case. The most general way of reaching the question of irregularities is by a motion to vacate or dissolve, and the motion is substantially treated as a demurrer to a pleading. The court will not go behind the face of the papers themselves, unless the objection embraces some feature connected with the execution or filing of the affidavit. These principles are somewhat elementary, and hardly need to have been enumerated; but, inasmuch as this is the first time this court has been called upon to construe attachment proceedings under our statute, we have thought it best to make these few general statements, in order to hereafter establish a uniform mode of procedure in these cases.

Our statute, in attachment proceedings, requires an affidavit by the plaintiff, or some one in his behalf, and it must show: (1) The amount of the debt, and the nature thereof. (2) One or more of the following grounds for attachment: That the defendant is a foreign corporation, a non-resident of the territory, or has departed therefrom with intent to defraud his creditors, or to avoid the service of summons, or keeps himself concealed with such intent; or that the debt was incurred by obtaining plaintiff’s property under false pretenses; that defendant is about to remove some of his or its property out of the territory, with intent to defraud creditors; or that he has assigned, disposed of, secreted, or is about to assign, any property with like intent; or that a debtor residing in this territory, who is about to remove from the county where he resides, with intent to permanently change his or her residence,...