Jones v. Peek, 101 Mich. 389

Jones v. Peek

101 Mich. 389 | Mich. | 1894

Grant, J.

Two questions are presented in this case:

1. The" affidavit for the writ of attachment stated as the basis therefor that “said Alice M. Jones is about to assign, -dispose of, or conceal her property, with intent to defraud *390her creditors.” It is claimed by the plaintiff, and was held by the court below, that this affidavit was void because it is in the alternative. Counsel for the plaintiff relies upon Kegel v. Schrenkheisen, 37 Mich. 174. In that case the affidavit stated that the defendant “has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal, his property,” etc. That case is not conclusive in this. On the contrary, it distinctly recognizes the existence of but two causes for the issuance of an attachment, viz., that the defendant has assigned, etc., and that he is about to assign, etc. The one ground for the attachment may apply to an intent either to assign, dispose of, or conceal, and in such case the use of the disjunctive is permissible. The record in this case does not show the reason for the belief. That would only appear on the hearing, upon a motion to dissolve the attachment. It is, however, stated in the brief of defendant's counsel that the ground for making the affidavit and issuing the attachment was that the defendant had said that she “was going to fix her property so that none of her creditors would get a cent.” If this were the fact, it would be applicable to an intent either to assign, to dispose of, or to conceal, but not to a case where it was alleged that she had assigned, disposed of, or concealed. It would be impossible for the creditor' to determine, from this statement of the debtor, whether she intended to assign, dispose of, or conceal her property; and the statute does not contemplate that he should, at his peril, so determine. This phrase constitutes one ground for the writ, and may be stated in the words of the statute. The weight of authority sustains this view. Wap. Attachm. 97-100; Wade, Attachm. §§ 56, 93; Brown v. Hawkins, 65 N. C. 645; Conrad v. McGee, 9 Yerg. 428; Van Alstyne v. Erwine, 11 N. Y. 331; Parsons v. Stockhridge, 42 Ind. 121; Emerson v. Steel & Spring Co., 100 Mich. 127. We have examined the other authorities cited *391by tbe plaintiff, and we do not think that they are in opposition to this view.1

2. Plaintiff was entitled to an exemption in goods seized under the writ. The defendant, who was the officer serving the writ, made an inventory, which he served upon her, and at the same time tendered her the use of an appraisal, which he had caused to be made, to enable her to select her exemption. She declined to take the appraisal or to make the selection. Thereupon the officer made the selection for her. The statute for attachment in justice's court requires the service of an inventory upon the defendant, but does not require the service of an appraisal.2 The exemption statute (How. Stat. §§ 7687, 7688) provides that when the defendant is entitled to an exemption the officer shall cause an appraisal to be made, whereupon the defendant is entitled to select his exemption. This statute was fully complied with when she was-served with the inventory, and tendered the use of the. appraisal to make her selection.

It follows that the judgment must be reversed, and. judgment entered in this Court for the defendant.

McGrath, C. J., Long and Hooker, JJ., concurred. Montgomery, J., did not sit.

Miller v. Munson, 34 Wis. 579; Moody v. Levy, 58 Tex. 532; Rittenhouse v. Harman, 7 W. Va. 380; People v. Blanchard, 61 Mich. 478; Beebe v. Morrell, 76 Id. 114; Buehler v. DeLemos, 84 Id. 554. 557; Howell v. Circuit Judge, 88 Id. 361.

How. Stat. § 6840.