Wilson v. Arnold

• Decision Date: 18 May 1858
• Citation: 5 Mich. 98
• Court: Michigan Supreme Court
• Parties: Jerome C. Wilson v. James Arnold and others

5 Mich. 98

Jerome C. Wilson v. James Arnold and others

Supreme Court of Michigan

May 18, 1858

Heard May 5, 1858; May 6, 1858; May 7, 1858 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Case reserved from Lapeer Circuit.

The action was ejectment, by the plaintiff against James Arnold, Henry Crapo and Henry C. Miles.

On the trial, it was admitted by the parties, that plaintiff and defendants Crapo and Arnold, claim title in fee to the undivided half of the premises described in the declaration through one William G. Wise, who was, on the 22d day of January, 1849, the owner in fee of the undivided half of the premises, and that Crapo and Arnold are owners in fee of the other undivided half.

And the plaintiff, to maintain the issue on his part, introduced in evidence a deed of the premises from William G. Wise, dated July 1st, 1856, duly executed and acknowledged, and purporting to convey the premises to plaintiff; and also showed that, at the time of the commencement of the suit, defendants were in possession of the premises, claiming the whole thereof, and refusing to recognize any right of plaintiff in the premises. Plaintiff then rested.

Defendants, on their part, introduced in evidence the original record, files, papers, and proceedings had in the late County Court for the county of Lapeer, in a cause commenced by attachment, wherein William Hathaway was plaintiff, and said Wise defendant. It appeared from said record and files that the writ of attachment issued on the 22d day of January, 1849, on the presentation to the clerk of two affidavits, and which were attached to the writ, as authority for issuing the same. One of these affidavits was made at Detroit, January 18th, 1849, by one Lockwood; who, as agent and attorney for and on behalf of said Hathaway, deposed therein, "That William G. Wise is indebted to the said William Hathaway, upon contract, express or implied, in the sum of six hundred and seventy-five dollars over and above all legal set-offs, as this deponent is informed and believes; and that, as this deponent has good reason to believe, the said William G. Wise is not a resident of the state of Michigan, and has not resided therein for three months immediately preceding the time of making this affidavit."

The other affidavit was made at the city of New York, January 6th, 1849, by said Hathaway, whose residence was therein stated to be at Brooklyn, N. Y., and set forth "That William G. Wise, late of Boston, now of Brooklyn aforesaid, is justly indebted to him, the deponent, in the sum of six hundred and seventy-five dollars, over and above all discounts and set-offs, for money lent and advanced to and for the said William G. Wise, and for interest thereon. And this deponent further says, that he has no security for the money so due to him, as aforesaid; and that although the said William G. Wise has repeatedly promised to pay and settle his said indebtedness to this deponent, he has wholly neglected so to do. And this deponent further says, that the said William G. Wise, has not, within thirty days next preceding the date hereof, nor at any other time, resided within the state of Michigan, to the knowledge and belief of this deponent."

And it was admitted that Lockwood's affidavit was presented to the clerk as soon as was practicable by usual course of mail, after the making of the same at Detroit.

The attachment being returned not personally served, and notice to the defendant having been published as required by law, the cause was continued in the County Court until August 7th, 1849, at which time judgment was rendered against Wise, in favor of Hathaway, for $ 716.04; and, upon execution issued on this judgment, the premises in controversy were sold February 15th, 1850, to Gerardus Clark, under whom defendants claim--no redemption having taken place.

Various objections having been made, on the trial of this cause. to the proceedings in the attachment case the Circuit Judge reserved the questions arising thereon for the opinion of this court.

M. Wisner and A. B. Maynard, for plaintiff:

The statute requires, in the affidavit for attachment, a positive statement of the indebtedness. This must be sworn to by the creditor, or by some person on his behalf who knows the fact to exist. Courts get no jurisdiction to issue process of attachment until such affidavit is made, as contemplated by law: 13 Wend. 46; 18 Wend. 611; 14 Wend. 237; 14 Barb. 96; 3 Cow. 206; 4 Denio 118; 1 Selden 164; 1 Chand. Wis., 29; 11 Humph. 108; 1 Conn. 45; 13 Ohio 506; Drew v. Dequindre, 2 Doug. Mich., 93; Greenvault v. F. & M. Bank, Ibid., 509.

The statement of the indebtedness on information and belief only, is in direct violation of the statute: 2 Doug. Mich., 432; 4 Denio 93; Ibid., 118; 4 Hill 598; 3 Mich. 278; 2 Mich. 419; 1 McLean 471; 9 Ga. 598.

The affidavits do not show that the debt was due to Hathaway, as the statute requires.

The proceedings in the attachment case are void, for the reason also that the affidavits for the writ were made several days before the writ issued: Drew v. Dequindre, 2 Doug. Mich., 93.

C. I. Walker, with whom were Howard, Bishop and Holbrook, for defendants:

1. By the Revised Statutes of 1846, in view of the decision in Drew v. Dequindre, 2 Doug. Mich., 93, a most significant change has been made in the law on the subject of issuing attachments. By the statutes of 1838, the affidavit was required to state that defendant "does not reside in this state, and has not resided three months immediately preceding the time of making application for such attachment." By the statutes of 1846, the affidavit must state that the defendant" is not a resident of this state, and has not resided therein for three months immediately preceding the time of making such affidavit."

The true doctrine now is, that the affidavit may be made a reasonable time before the issuing of the writ--that reasonable time to depend on the circumstances of each case: Drake on Attach., 117.

An affidavit sworn to out of the state would be good: 8 Blackf. 231; 3 Mo. 348.

The only possible objection there can be to the affidavit bearing date before the writ, is that the debt may be paid between the date of the one and the other; but the legal presumption is that things remain in statu quo: 1 Greenl. Ev., § 541.

2. The objection that the affidavit of Lockwood is defective, from stating the indebtedness on information and belief, is not well taken: 1 Gill 372, 380; 2 Wend. 298; 2 Humph. 443; 6 How. Miss., 254; 3 Harr. 217; 26 Miss. 144; 3 Barb. 112; 12 La. 345; 7 Mo. 453; 4 Mich. 504; Drake on Attachments, 105.

Under the New York statute requiring proof of all the grounds, facts and circumstances, it has been held that it is sufficient to swear to the fraudulent intent on belief, if the facts and circumstances on which the belief was founded are set forth: 1 Barb. 555. The affidavit of Hathaway constituted the facts and circumstances on which Lockwood based his belief, and these appear of record. And see 7 Barb. 661; 18 Wend. 614.

3. Lockwood's affidavit sufficiently showed that the debt was due. The expression indebted upon a contract, is precisely similar in its legal effect to saying there is a sum due upon contract: 7 Humph. 210; 16 Ark. 111; 10 Mo. 273; 24 Miss. 564.

4. The proceedings in the County Court can not be attacked in a collateral suit: 10 Pet. 449; 5 McLean 149; 15 Ohio 435; 17 Ohio 409. None of the objections made are jurisdictional. Filing the affidavit, issuing the writ, and attaching the property give jurisdiction: 15 Ohio 435. However great the irregularities, the judgment is valid and conclusive until set aside: 2 Mo. 228; 1 Mor. 55; 6 Ala. 154; 9 Ala. 214; 2 Bev. & Batt., 504; 3 McC. 201; Ibid., 345; 2 Litt. 235; 3 B. Monr., 80; 1 Rich. 412; 2 Chand. 116; 4 Blackf. 264; 16 Pet. 600; 2 How. 319; 6 How. 30; 14 How. 586.

While not conceding the reasoning of the court in Greenvault v. F. & M. Bank, 2 Doug. Mich., 498, to be sound, it is submitted that that case establishes the position that, as between the parties to the attachment suit, the judgment founded on a writ which issued without affidavit is void, and may be attacked collaterally; and limits the force and effect of the decision to those parties. In this case, defendants are not parties to the original suit, but bona fide holders and innocent purchasers.

OPINION

Manning J.:

In Drew v. Dequindre, 2 Doug. Mich., 93, the affidavit was sworn to on the 10th of June, and the writ was issued on the 12th of that month; and it was held the affidavit should have been sworn to on the day the application was made for the writ. That case is decisive of the present. The phraseology of the statute under which the proceedings in that case were had, differs, it is...