Brown v. Morris

10 S.C. 467 | S.C. | 1879

The opinion of the Court was delivered by

Haskell, A. J.

The appeal is from an order of the Circuit Judge which set aside an attachment because of the insufficiency of evidence. The proceeding by attachment is a reverse remedy allowed only under circumstances designated in the statute, and the evidence that those circumstances exist should be clear. When the defendant is a resident of the State, as in this cáse, the warrant may be issued whenever it shall appear that a cause of action exists against him, and that he has removed, or is about to remove, any of his property from the State with intent to defraud his creditors, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, any of his property with like intent. — Rev. Stat., p. 623, § 252. These facts must be made to “appear by affidavit.” It is sufficient that they be alleged or stated on information or belief on the part of the applicant. The affidavits in such cases must contain a statement of the particular facts upon which the allegations rest and the sources from which the information is derived. The evidence thus presented must be of such a character as would in an action at law prima faeie establish the facts alleged. In no other than in such sense and by such means can the requisite facts be made to “appear” to the Judge or other proper officer before whom the motion is made.

In the case of Smith & Melton vs. Walker, (6 S. C., 164,) in considering the effect of an affidavit which merely alleged that the defendant had departed to avoid legal process and “disposed of his property with intent to defraud his creditors,” the Court says that had the validity of the attachment rested upon such evidence alone “a serious question of irregularity would have been presented, for charges of this nature should be supported by a statement of the facts on which they are founded.” The plaintiff in the present case, the appellant, has, perhaps, attempted to conform to the rule, at least in form; but the grounds upon which he rests are either not facts but mere inferences or hearsay, or they are irrelevant or self-contradictory.

The foundation of the whole proceeding is that the plaintiff’s attorney in the cause, in the affidavit, “verily believes that the said defendant, Manuel Morris, has disposed of or secreted, and is about to dispose of and secrete, his property with intent to defraud his creditors,” because: 1. “Deponent having brought suit on the various claims admitted by the defendant to be due as aforesaid, the defendant, in bad faith, put in sham defenses to said suits, &e.” The appellant’s own showing admits that the Circuit Judge, on a motion made by deponent to strike out said answers on the ground that they were “sham,” had decided that they were not sham. That proceeding, too, seems to have preceded the motion before the Clerk. 2. The next fact alleged is, that a judgment'had been recently obtained against the defendant by a daughter of said defendant in the County of Kershaw. From this fact, and from the consequent fact of a levy on the goods of defendant to satisfy said judgment, the affiant proceeds to deduce conclusions totally unwarranted by any rule of evidence; and with regard to a solemn judgment of the Court, unassailed at any time by any proceeding on the part of the plaintiff or any other person, (for this Court asked the question,) the affiant proceeds, without a title of proof, to say “ which judgment, this deponent verily believes, was fraudulent.” There are no further facts of any importance alleged, and it is needless to further discuss the affidavit, for it presents no ground for an attachment.

Property in the hands of the Sheriff, by virtue of a levy under execution, cannot be regarded as removed from the State or disposed of, assigned or secreted in the sense in which those words are used in the statute. The property was actually in the custody of the law, in the position”most advantageous to the interest of creditors, according to affiant’s showing. Such being the condition of the property, the judgment under which it was held had to be assailed before fraud could be set up. Until such proceeding had been had or begun, allegations of fraudulent intention were entirely immaterial. The removal or disposal and the intent to defraud must co-exist before the remedy by attachment can be had. The proof of either would by itself be insufficient. It is but fair, however, in this ease to say that there is as little evidence of fraudulent intent as there is of disposal of' the property. The Sheriff’s return shows that the defendant’s property has gone to the payment of his debts under judgments, and that the only harm done to the appellant is that he was not suffered by the defendant to obtain judgment in advance of others. The law provides that “ in all eases the defendant may move to discharge the attachment, as in the case of other provisional remedies.” — Rev. Stat., 628. The only taint of fraud which could have attached to the defendant in this case would have been in his failing to protect his just creditors by not moving to set aside the unwarranted preference which seemed to have been gained, by the appellant.

The order of the Circuit Judge is affirmed.

Motion refused.,

Willard, C. J., and Melver, A. J., concurred.