52 Mich. 164 | Mich. | 1883
On the 3d day of February, 1883, the plaintiff, by George A. Farr, its attorney, sued out of the ■circuit court for the county of Ottawa, a writ of attachment against the property of defendants. The attachment was founded upon an affidavit of the attorney for plaintiff, ■stating in substance, among other things, that he had good reason to believe, and did believe, that the said defendants were about to sell, assign and dispose of their property with intent to defraud .their creditors, and that they had sold, .assigned, disposed of and concealed their property with the like intent, and that the said defendants fraudulently contracted the debt respecting which the suit was brought. The claim upon which the suit was commenced was a promissory note made by the Michigan Barge Company for the sum of $5000, due February 23, 1883, and indorsed by Ferry '& Bro., that being the firm name of the other two defendants. The defendant, The Michigan Barge Com
On the 5th of May, 1883, the Barge Company filed its petition in the circuit court in said county of Ottawa, and moved thereon for a dissolution of the attachment. A hearing was had upon the petition before the circuit judge, who, on the 26th day of June, 1883, entered an order dissolving the attachment, and restoring the property attached to the defendant. These proceedings are now before us for review on certiorari.
The proceedings are taken under Comp. L., ch. 201 [How. St. ch. 275.] They are judicial, and not according to the course of the common law. Chandler v. Nash 5 Mich. 416. The statute requires the circuit judge or circuit court commissioner to hear the proofs and allegations of the parties, and if a good and legal cause for suing out the writ is not satisfactorily made to appear to the court upon such hearing, it is his duty to dissolve the attachment and order the property restored to the defendant. The affidavit of the plaintiff, his agent or attorney, is prima facie sufficient cause for issuing the writ; but upon the facts being denied in the petition for a dissolution, the burden is cast upon the plaintiff to make good the cause he alleges by other competent proof in addition to that contained in his affidavit for the writ. He must maintain the affirmative of the issue thus made up in order to sustain his lien created by a levy under his writ. Macumber v. Beam 22 Mich. 395; Brown v. Blanchard 39 Mich. 790; Powers v. O'Brien 44 Mich.
We cannot review the decision of the circuit judge on the testimony unless there is an entire absence of proof on some material point. Brown v. Blanchard supra; Cicotte v. Morse 8 Mich. 424; Berry v. Lowe 10 Mich. 9; Hyde v. Nelson 11 Mich. 353; Linn v. Roberts 15 Mich. 443; State Bank of Fenton v. Whittle 41 Mich. 365; Schall v. Bly 43 Mich. 401. Questions of law arising in the ease, when properly presented, are open to review in this Court. Hyde v. Nelson supra; McGraw v. Schwab 23 Mich. 18; Johnson v. De Witt 36 Mich. 95.
Keeping these rules in mind, we now proceed to the examination of the questions raised upon the record and the rulings of the circuit judge in the cause.
On the 12th day of June, 1883, the hearing on the application to dissolve was had before the circuit judge. On the 19th day of May previous, one Joseph O’Brien replevied four of the boats from the sheriff, three of which were being proceeded against at the time in the United States 'District Court for the Western District of Michigan in admiralty by other parties.
The plaintiff produced testimony (which was undisputed)
From these facts the plaintiff asked the circuit judge to find that the indebtedness of the defendants in suit was fraudulently contracted. The court passed upon this question in the negative, and we cannot disturb that finding, provided he heard all the evidence offered upon that point, however much we might feel inclined to disagree with such finding.
T. ~W. Ferry at this time was president of the Barge Company, and his firm owned all but $675 of the $200,000 stock. He aided in the sale of the Barge Company’s notes, to the knowledge of its officers and managers. Ferry & Bro. not only controlled its operations, but were really the Barge Company; and we fail to see any good reason why the Barge Company should not be bound by T. ~W. Ferry’s representations so far as they had any bearing upon the sales and transfers of the note in suit.
Ve think the circuit judge erred in rejecting the report made by T. "W. Ferry to Bradstreet’s agency, and upon which the plaintiff: claims to have relied and acted in this-case. The business of these agencies is well known to the commercial community. Indeed it is said by Justice Rapallo, in Eaton, Cole & Burnham Co. v. Avery 83 N. Y. 31, that “ the business and office of these agencies are so well-known, and have been so often the subject of discussion in adjudicated cases, that the courts can take judicial notice of them. Their business is to collect information as to the circumstances, standing, and pecuniary ability of merchants and dealers throughout the country, and keep accounts thereof, so that the subscribers to the agency when applied to by a customer to sell goods to him on credit, may by resorting to the agency or to the lists which it publishes, ascertain the standing and responsibility of the customer to
It is claimed the representations given by Ferry to the agency were in writing, and the plaintiff did not offer the original. The original was copied by the witness, and then it was handed back to Ferry. Plaintiff gave defendant’s attorney notice to produce the original, which was not done, and Ferry was m Europe. Under the circumstances we think the testimony offered was proper, and should have been received.
It is not claimed that the note in suit was not lawfully given by the Barge Company; and the record, we think, tends to show that these notes were under T. W. Ferry’s
It is the duty of this Court in reviewing proceedings in this class of cases to consider the rulings of the circuit judge in excluding testimony which is competent and relevant in support of plaintiffs case where the attachment has been dissolved ; otherwise the plaintiff might be deprived entirely of the benefit of his writ, when his evidence was at hand to show the intent to defraud charged against defendant. In nothing that has ever been said by this Court was a contrary ruling intended. Witness Akeley testified that he was acquainted with the Barge Company’s property, and that he held a mortgage on the property. Counsel for plaintiff then asked witness the following questions:
“ Of $20,000 ? On what particular barges ? ”
“ Was there any consideration passing from you to the company for that mortgage ? ”
“ Have you ever paid the company anything for the mortgage ?”
Each of these questions was objected to and the objection sustained. One of the causes mentioned in the affidavit upon which the writ issued was that defendants had disposed of their property with the intent to defraud their creditors. Certainly the amount for which the mortgage was given, and whether anything had been paid for it, were material facts bearing upon that point; and the plaintiff was entitled to the testimony called for.
Several of the officers of the company were examined by the plaintiff’s counsel to ascertain the situation of the property of the Barge Company, the amount of its indebtedness and by whom and when it was held. Answers were given with great apparent reluctance, and it was with much difficulty that any information at all could be obtained uf>on the points desired. While the secretary and treasurer of the
Further discussion of the case is unnecessary. The errors mentioned relieve us from the consideration of the other points raised by counsel.
The order of the circuit judge dissolving the attachment must be set aside and the application dismissed with costs of both courts.