57 Neb. 314 | Neb. | 1899
An opinion was filed herein at the September term, 1896, denying a motion to dismiss made on the ground that the order sought to be reviewed was not a final order within- the meaning of section 581 of the Code of Civil Procedure. (Clarke v. Nebraska Nat. Bank, 49 Neb. 800.) This submission is upon the merits. The Nebraska National Bank, on April 10, 1896, obtained a judgment in the district court of Douglas county against Henry T. Clarke and William E. Clarke for $12,843.75, besides costs. On April 11, 1896, an execution was issued -thereon, which was returned by the sheriff wholly unsatisfied. During the same month and year an alias execution^was issued on said judgment, and while the same remained in the hands of the sheriff wholly unsatisfied there was filed with the clerk of the court below the .affidavit of Lewis S. Reed, the cashier of said bank, to institute proceedings in aid of execution. This affidavit is entitled in the cause in wiiich the judgment was entered, and, after setting forth the facts already narrated, continues tlnis: “Affiant further says that said-defendants have not personal or real property subject to levy or execution sufficient to satisfy the said judgment. Affiant further says that the said defendants are residents of Douglas county, Nebraska, and that said defendant Henry T. Clarke has property, as affiant believes and has reason to believe, which he unjustly refuses to apply upon said judgment. Affiant further says that he believes, and has reason to believe, that the First National Bank of Omaha, * -* * John T. Clarke, and A. M. Clarke, and each of them, have property of the -judgment debtor, Henry T. Clarke, and are indebted to 'said judgment debtor Henry T. Clarke, and further affi- ■ ant sayeth not.” The district court on the same day made an order requiring Henry T. Clarke and the persons and .corporations named in the affidavit to appear at a time and place designated and make answer under oath to
The affidavit of Lewis S. Reed is assailed upon three grounds, only one of which will be noticed, namely, that the averments therein having been made upon information and belief without disclosing the sources of the affiant’s information or the grounds for his belief, render the affidavit fatally defective. The proceeding below was instituted under sections. 532-549 of the Code of Civil Procedure. Sections 533-, 534, and 538 of said Code read as follows:
“Sec. 533. When an execution against the property of a judgment debtor, or one of the several debtors in the same judgment, is issued to the sheriff of .a county where he resides, or, if he do not reside in the state, to the sheriff of the county where the judgment was rendered, or a transcript of a justice’s judgment has been filed, is returned unsatisfied in whole or in part, the judgment creditor is entitled to an order from a probate judge or a judge of the district court of the county to which the execution was issued, requiring such debtor to appear and answer concerning his property, before such judge, or referee appointed by such judge, at a time and place specified in such order, within the county to which the execution was issued.
“Sec. 534. After the issuing of an execution against property, and upon proof by affidavit of the judgment creditor or otherwise, to the satisfaction of the district court, or a judge thereof, or a probate judge of the county in which the order may be served, that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, such court or judge may, by order, require the judgment debtor to appear at a time and place in said county to answer cop*317 cerning the same. And snch proceedings may thereupon be had for the application of the property of the judgment debtor towards the satisfaction of the judgment as are prescribed in this chapter.”
“Sec. 538. After the issuing or return of an execution against property of the judgment debtor, or of any one' of several debtors in the same judgment, and upon proof by affidavit or otherwise, to the satisfaction of the judge, that any person or corporation has property of such judgment debtor, or is indebted to him, the judge may, by an order, require such person or coi’poration, or any officer 'or member thereof, to appear, at a specified time and place, within the county In which such person or corporation may be served with the order to answer; and answer concerning the same. The judge may also, in his discretion, require notice of such-proceeding to be given to any party in the action in such manner as may seem to him proper.”
These sections were adopted by the territorial legislature of 1858, and have remained upon the statute book until the present time, although in the various published statutes section 534 has not always been printed the same. In the Revised Statutes of 1868 and the several editions of the Compiled Statutes said section is printed to read “such court or judge may by order require the judgment creditor to appear,” etc., while in the Session ' Laws of 1859 (p. 188, sec. 474), the year said section was enacted as a law, and also in the General Statutes of 1873, the section is published precisely as quoted above. The original enrolled bill on file in the office of the secretary of state we have not examined. Manifestly the legislature intended to provide for the examination of the judgment debtor, and not his creditor, and for the purpose of the present investigation we shall so construe the section.
It is insisted by counsel for the bank that no affidavit was necessary to obtain an order for the examination of Henry T. Clarke, since one execution which had been
The order for examination refers to the affidavit of Lewis S. Reed, and makes the same a part thereof by such reference, and it not being disclosed from the face of such order, or evidence aliunde, that it was predicated upon evidence other than said affidavit, no other inference is permissible than that the affidavit, and nothing
We will now consider the sufficiency of the affidavit. It cannot escape observation that more than one of the material averments therein are not sworn to positively, but are in express terms made upon the mere belief of the affiant. Then it is not alleged as a fact that Henry T. Clarke has property which he unjustly refuses to apply on the judgment, bufinerely “as affiant believes, and has reason to believe,” and in the same manner it is stated that the several persons and corporations named in the affidavit have property of the judgment debtor or are indebted to them. At no pláce in the affidavit is the source of the information from which the affiant formed his belief of the matters alleged, nor is a single fact alleged from which it could be inferred that Clarke has property which he unjustly refused to have applied on the judgment in question, or that any one of the persons or corporations designated in the affidavit is his debtor. .The statute does not say that the order for examination may issue upon an affidavit made upon information and belief, but before the order can go, it is required to be established to the satisfaction of the court or judge by 'affidavit of the judgment creditor or otherwise that the --statutory grounds exist for the issuance of the order. An affidavit made upon information and belief merely, or upon the belief of the affiant, does not meet the requirements of sections 534 and 538. This view is strengthened by the consideration of section 244 of the Code of Civil Procedure relating to the issuance of summons in garnishment. That section' expressly provides that the summons shall issue when an affidavit is filed by the execution creditor, his agent or attorney, stating “that he has good reason to and does believe that any person or corporation (naming .them) have property of and are indebted to the judgment debtor.” Under this section mere belief is all that is required of the affiant. (Burnham v. Doolittle, 14 Neb. 214.) Had the legislature
Counsel for the bank have cited four decisions to sustain the sufficiency of the affidavit, — three from the state of New York, and the other by the supreme court of North Carolina, — which we will now notice.
Teft v. Epstein, 7 N. Y. Supp. 897, and Grinnell v. Sherman, 11 N. Y. Supp. 682, held that an affidavit on information and belief was sufficient, 'but those cases were overruled on that point by the opinion in Re Leslie, 44 N. Y. Supp. 1103.
Miller v. Adams, 52 N. Y. 409, contains language to the effect that an affidavit upon information and belief was sufficient whereon to base an order for an examination of a judgment debtor’s debtor, but what is said in the opinion on that subject is mere obiter, and the court in the opinion expressly stated that “as it is unnecessary to determine this question in this case, I shall not discuss it, nor is it passed upon by the court.”
In the North Carolina case (National Bank of Westminster v. Burns, 13 S. E. Rep. 871) the affidavit made in aid of execution was substantially like the one at bar, and was held good. It was not assailed on the ground that the averments were upon information and belief, nor' did the court discuss or refer to that feature of the affidavit.
Upon principle, as well as authority, we are constrained to hold that the affidavit of Lewis S. Reed was so defective as to make the order based thereon erroneous. The court below erred in refusing to vacate the order for the examination of the judgment debtor and his alleged debtors.
Reversed.