22 Mich. 395 | Mich. | 1871
This was an application made by Beam, the defendant in error, under the act of 1851 (Comp. L., Secs. 4773 to
The first objection raised by the plaintiff in error before the commissioner and relied upon here, is that the application or petition presented to the commissioner “does not show, by sufficient and certain allegations; the right of the petitioner to the property attached.”
It is unquestionably necessary under this statute, in order to give the commissioner jurisdiction, that the application should show that the property of the petitioner has been attached, as this fact is, by the statute, made the very ground of the jurisdiction. — Chandler v. Nash, 5 Mich., 509; Osborne v Robbins, 10 Mich., 277.
It- must also describe the property so attached (see case last cited).
And as the third section contemplates an order for the restoration of the property to the defendant, in case the commissioner shall dissolve the attachment, it would seem to follow that such defendant is not to be entitled to the dissolution of the attachment unless he continues to be the owner of the property at the time of the application, if not also at the time of the hearing. But in no case has it yet been adjudged by this court that the application or petition must contain an express or direct averment, that the property still belongs to the applicant, when it has been once alleged in such application that the property of the applicant has been attached. The farthest we have yet gone in this direction has been to hold that whenever it affirmatively appeared (and whether from the application itself or the evidence upon the hearing, would of course be immaterial) that the property at the time of the application did not belong to the applicant, he was not entitled
The last cited case contains a dictum, from which an inference might be drawn that the application must contain a direct or express averment of the continued ownership. But the facts of that case did not call for a decision upon that particular point; and we think it sufficient if this fact is fairly inferable from the application as a whole, or, in other words, if by fair construction of the whole instrument, it would, to the common understanding, convey the idea that the property still continued to belong to the applicant.
In the present case the application does directly and positively allege the main jurisdictional fact expressly required by the statute, that the property of the applicant (describing it) has been attached. "Whether this would of itself authorize an inference of continued ownership till the contrary should be shown, we need not decide, since the application, in its prayer for relief, “prays that the said attachment of his property above described may be dissolved, and that the said property be restored to this applicant.” We think, by fair intendment, this, in connection with the allegation that his property was attached, naturally conveys the idea, to the common understanding, of the continued ownership of the property, and that it should be held sufficient until the fact should appear to be otherwise. This application is not in this respect precisely analogous to a complaint in forcible entry and detainer, and the affidavit for the writ of attachment, since in the first case the present right of possession, and in the other the indebtedness upon contract, and that it is at the time due, are, by the respective statutes, expressly required to be directly stated as the very ground of the jurisdiction, as
But the continuance of the ownership is not by the statute itself made strictly a jurisdictional fact. It is only by an inference from the statutes that this fact is held to be necessary to entitle the applicant to relief upon the hearing. And this inference may be satisfied, so far as relates to the sufficiency of the application, by a fair inference of the same facts from the language of that instrument.-
The Only other question raised in the case is, whether, upon the hearing before the commissioner, the plaintiff in the attachment is to begin by showing good cause for its issuing; or whether the defendant is to begin by showing the nonexistence of such cause, and upon whom rests the burden of proof. The commissioner held that the plaintiff held the affirmative, — that he was to begin, and that the burden of proof rested upon him in the first instance to show the existence of the facts necessary to sustain the attachment. This the plaintiff declined to do, insisting that the burden of proof was upon the defendant, to show the non-existence of the necessary grounds for its issuing; and, without any testimony offered upon either side, the commissioner dissolved the attachment.
We think this ruling was correct, and that the statute clearly contemplates that the plaintiff is to begin, and that the burden of proof is upon him to show, to the satisfaction of the commissioner, the existence of such facts as justified the issuing of the writ. The statute expressly requires a citation to the plaintiff, “requiring him to show cause why said attachment should not he dissolved and the property'restored to the defendant in the attachmentand in a proceeding where a party is called upon to show cause, consisting of facts affirmative in their nature, it would be departing
The plaintiff in error, however, urges that the provision above cited is shown by a subsequent provision in the same section to mean that the defendant in the attachment is in fact required to show that no good grounds for issuing the writ existed. The clause relied upon as having this effect is that which provides that at the hearing the commissioner “shall proceed to hear the proofs and allegations of the parties, and if he shall .be satisfied that such plaintiff has not good legal cause for suing out such writ, he may order such attachment to be dissolved, and the property attached to be restored to the defendant.”
We do not think this clause warrants the conclusion sought to be drawn from it; because we think if the plaintiff shows no grounds for its issuing, as by the citation he-was required to do, and especially if he declines to offer any evidence to this end, the commissioner is fully warranted, in considering his failure or refusal to do so, as authorizing the inference and the finding, that no such cause existed. In fact, we do not see that he could be warranted in drawing any other conclusion.
This proceeding by attachment, which seizes a defendant’s property for a debt before the existence of the debt is. judicially ascertained, is, under our system, an exceptional and extraordinary remedy. The statute providing for the attachment (Comp. L., Sec. 4743) allows the writ to be-issued upon an affidavit, which, after showing positively the- existence of the debt, and that it is- due upon contract,, is permitted to state the real grounds for issuing the writ, upon belief only, and that the affiant has good reason for such belief. This may be necessary in some cases to prevent the sudden removal or fraudulent disposition of the
This act, when construed in connection with that allowing the writ to issue, shows clearly the legislative intent, that though the plaintiff may obtain his writ and provisionally secure the property, he is not entitled to retain it, unless he can show to the satisfaction of the commissioner that some of the grounds to which he swore upon belief existed in fact.
We see no error in the proceedings before the commissioner, and those proceedings must be affirmed, with costs to the plaintiff in error.
