Dumay v. Sanchez

Alvey, C. J., delivered the opinion of the Court. The plaintiffs, the present appellees, sued out an attachment on original process against the defendant Dumay, under the provisions contained in sections 35, 36, 37 and 38, of Art. 9 of the Code; and under which attachment certain personal effects of the defendant were seized by the sheriff. The claim of the plaintiffs consists of three promissory notes; the first dated the 27th of Soy. 1888, and the other two the 30th of Jan. 1889. The attachment was issued on the 3d of April, 1889, and on the next day thereafter the defendant made a general assignment of all his property for the benefit of all his creditors, without priority or preference, to W. S. Bryan, Jr., an appellant in one of the appeals in the record now before us.

On the same day of the making of the assignment by Dumay, motions were made, both by Dumay, the defendant, and Bryan, the assignee, for the return forthwith of the attachment, and that the same be quashed, 1st. because the affidavit upon -which the attachment was issued, wras false in stating that the defendant Dumay wars about to abscond from the State; and 2nd, because such affidavit was false in stating that Dumay was about fraudulently to dispose of his property. On these motions an order was passed requiring the return of the attachment, and fixing a day for hearing the motions. The attachment was returned, and the motions were heard; and the Court thereupon overruled the motions to quash, and entered judgment of condemnation of the property seized. There were other motions made in the cause, but it is not material that they be considered here.

From the order overruling the motion to quash and from ⁵¹⁰ the judgment of condemnation, the defendant Dumay, and the assignee Bryan, entered their several appeals. Section 35 of Art. 9 of the Code, already referred to, in prescribing the conditions upon which an attachment under that statute may issue, provides that the affidavit shall state “that the jdaintiff knows, or has good reason to believe, either (1st,) that the debtor is about to abscond from this State; or (2nd) that the defendant has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal his property, or some portion thereof, with intent to defraud his creditors; or (3rd) that the defendant fraudulently contracted the debt, or incurred the obligation respecting which the action is brought; or (4th) that the defendant has removed, or is about to remove his property, or some portion thereof, out of this State, with intent to defraud his creditors.” The existence of some one at least of these conditions is essential to the validity of the attachment proceedings, under this particular statute; and unless the affidavit states some one or more of such conditions, as the foundation of the attachment, it cannot be sustained. The affidavit in this case, made by Gibson, one of the plaintiffs, states' as the ground for the attachment, “that the said jalain tiffs have good reason to believe: 1st. That the said Edward Dumay is about to abscond from this State;, and 2nd.

That the said Edward Dumay has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal, his proj)erty, or some jiortion thereof, with intent to defraud his creditors.” These allegations are jurisdictional, and, as we have seen, they have been traversed, and charged to be false in fact, as well by the defendant as by the assignee, who claims the property seized under the attachment. In the case of Barr vs. Perry, 3 Gill, 313 , it was held by the Court of Ajrpeals, that neither the defendant nor the garnishee could be concluded by the affidavit of the ⁵¹¹ plaintiff, as to any jurisdictional fact, necessary to appear in the affidavit, as the foundation of the attachment. That the truth of such facts could he put in issue either by plea or by motion to dissolve; and, in the same case, it was said by the Court, quoting the language of a Court of a sister State, that the parties who issue the attachment are bound to supjrort it, when it is attacked. Boyes, et al. vs. Coppinger, 2 Yeates, 277 .

The same principle has been laid down by other Courts, as the settled law in such cases. Genesee Sav. Bank vs. Mich. Barge Co., 52 Mich., 162 ; Wade on Attach., sec. 281.

The case appears to have been tried below upon the oral examination of witnesses before the Court; but the testimony is presented to this Court in a most irregular and unauthorized manner; though it seems to be by the consent of counsel for the appellees. On page 7 of the record, after the order to enter the appeals, we find this entry made by the clerk: “Papers inserted in record by order of the appellant;” and then follows what purports to be the testimony taken at the trial, but which is in no manner authenticated by the Court, as in form of a bill of exception properly framed, (the regular and formal mode of presenting facts proved at the trial below to the appellate Court, on an appeal from a Court of common law,) nor even in form of depositions authorized to be taken and used at the trial, and authenticated in the usual maimer of taking evidence in such form. But the whole mass, as we may suppose it to have been reported by a stenographer with all its irrelevancies, consisting of questions and answers, dialogues, and digressions, and repetitions without limit, has been inserted into the record, without apparent authority, or any the least official authentication to this Court whatever. It may be safely stated that of the whole testimony taken, every material or relevant fact or circumstance to be gathered from it, could have been well ⁵¹² stated in a hill of exception that would not have