Castellanos v. . Jones

| NY | Jul 5, 1851

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The most material questions made in this case arise on the charge of the judge at the trial, and are — First, whether Judge Daly, who issued the attachment, under which the defendants justified the taking of the goods, for which the action was brought, acquired jurisdiction to issue it. And second, if not, whether the want of jurisdiction appeared on the face of the process. For if the judge did not acquire jurisdiction to issue the process, and that appeared on its face, it furnished no protection to the defendants, or either of them, for taking the property in question.

The proceedings were attempted to be taken pursuant to the authority conferred by 2 R.S. p. 3, § 1, sub. 1. To confer jurisdiction on the officer to issue the attachment under that statute, the application being made by McKinley, the creditor, should have been in writing, and have stated that the applicant resided in this state, that he was a creditor of Rodriguez, who was an inhabitant of this state, that he had a demand against himpersonally, that it arose either upon contract or upon a judgment or decree rendered within this state, specifying which, and setting forth its amount, over and above all discounts, showing that it amounted to $100, or upwards, and that Rodriguez had secretly departed from this state, with intent to defraud his creditors, or to avoid the service of civil process; or that he kept himself concealed within this state, with the like intent.

It should have been verified by the affidavit of McKinley, in which the sum should have been specified in which Rodriguez was indebted to him, over and above all discounts, and the grounds upon which the application was founded; and accompanied by the affidavits of two disinterested witnesses, establishing the grounds upon which the application was made.

The requirements of the statute were so far complied with, as to present the application to Judge Daly in writing, and stating in it that McKinley resided in this state, and the sum which it was claimed was owing to him, but it did not state that the debt or demand was owing from Rodriguez personally; or expressly,how it arose; whether upon contract or judgment or decree; it did not state that Rodriguez was an inhabitant of this state, and had secretly departed there from, with intent to defraud his creditors, or to avoid the service of civil process, or that he kept himself concealed therein, with the like intent.

It stated that the demand of the applicant arose "upon "money received by said Rodriguez for account of deponent," "and in respect to the inhabitancy of Rodriguez being in this state, and his having secretly departed therefrom, with intent to defraud his creditors, or to avoid the service of civil process, or that he kept himself concealed therein, with the like intent — it merely stated "that Joseph F. Rodriguez "formerly, residing in the city of New York, but now absent "therefrom or concealed therein, is an absconding or concealed "debtor and cannot be found;" omitting, as it will be seen, to state, either that he was an inhabitant of the state, or that he had departed fromthe state, or that he kept himself concealed within the state,with the intent to defraud his creditors, or to avoid the serviceof civil process. It falls far short of stating the facts, upon the existence of which, and upon being stated and verified as required, the statute authorizes the issuing of an attachment.

As to the verification of the application by the affidavit of the creditor, McKinley, it is as loose and as little in conformity with the requisitions of the statute as the application is supposed to be. It verifies the sum of the indebtedness and how it arose substantially as stated in the application, and affirms that Rodriguez is an absconding or concealed debtor, and although it states that Rodriguez was an inhabitant of this state, it does not affirm that he haddeparted therefrom with intent to defraud his creditors, secretly or otherwise, or that he had departed therefrom, to avoid the service of civil process, or that he kept himself concealed within the state with the like intent.

It merely affirms that since the fourteenth of January instant the said Rodriguez had absconded, (not departed from the state,) or concealed himself to avoid the service of civil process, (not concealed himself within the state with intent to defraud his creditors, or to avoid the service of civil process.)

Then as to the affidavit of the two witnesses required by the statute to verify the facts and circumstances, to establish the grounds on which the application is made. It should have affirmed that the debtor was an inhabitant of this state, that he had secretly departed therefrom, with intent to defraud his creditors, or to avoid the service of civil process, or that he kept himself concealed within this state with the like intent, as the deponents believed to be true, and then showing the facts and circumstances by which their belief of the existence of the facts testified to was established. Instead of such an affidavit, the one presented to the judge with the application, affirms that the debtor had left his usual place of business and residence in the city of New York and could not be found in the city, (not that he was an inhabitant of the state and had secretly departed therefrom, with intent, c.)

It would be a violation of every principle applicable to the question of showing facts necessary to confer jurisdiction upon the officer in such cases to issue an attachment, to hold that the application and affidavits or either of them, presented to Judge Daly for an attachment against the property of Rodriguez were sufficient for such purpose. The attachment, therefore, issued by the judge upon the application and affidavit of McKinley was void, for want of stating facts sufficient to bring the case within his jurisdiction.

The next question is whether the attachment on its face, shows a want of jurisdiction in Judge Daly to issue it. Instead of reciting as it should, that McKinley, the creditor, had made an application in writing to the judge for an attachment against Rodriguez, the debtor, a resident of this state as an absconding or concealed debtor, setting forth that McKinley was a creditor of Rodriguez and had a demand against him personally arisingupon contract or upon a judgment or decree rendered within thisstate, c., amounting to $100 or upwards, over and above all discounts, and that said Rodriguez being an inhabitant of this state had secretly departed therefrom, with intent to defraud his creditors, or to avoid the service of civil process; or kept himself concealed therein, with the like intent, which application was verified by the affidavit of said McKinley, and the facts and circumstances to establish the grounds on which said application was made was also verified by the two witnesses named, — the attachment omits to recite that the creditor, McKinley, had any demand against Rodriguez personally, or how the demand stated arose; whether upon contract or upon judgment or decree rendered within this state; it also omits to recite or state that Rodriguez hadsecretly or otherwise departed from the state, with intent to defraud his creditors, or to avoid the service of civil process, or that he kept himself concealed within the state with the like intent — but merely recites that "Rodriguez has absconded from the city, or is concealed "therein to avoid the service of civil process."

The statute confers no authority upon any officer or judge to issue an attachment against the property of a debtor, because he has absconded from the city of his residence, to avoid the service of civil process. Therefore, upon the face of the process the total want of jurisdiction in Judge Daly to issue it, obviously appears, and, of consequence, it afforded no protection to either of the defendants for their acts under it. The judgment must be reversed and a new trial granted, with costs to abide the event.

Judgment reversed.