Merrill v. Low, 1 Bur. 59

Merrill v. Low

1 Bur. 59 | Wis. | 1842

Dunn, C. J.

This suit was originally commenced , in the district court for Dane county, by attachment issued on an affidavit of facts as cause for issuing the writ, with an indorsement of satisfaction thereon by the proper officer. In the court below, the defendant moved to quash the writ and dismiss the proceedings for these reasons, viz.:

1. “ Because the affidavit of said plaintiff, filed with the clerk of said court in this cause, is insufficient in this, that it does not state the existence of any particular fact which authorizes the issuing of a writ of attachment.

2. Because the affidavit is uncertain.

3. Because the certificate of William N. Seymour, as supreme court commissioner upon the affidavit, is insufficient, for the reason that it does not appear that the said Seymour was satisfied of the existence of any *224particular fact which authorizes the issuing of a writ of attachment.

4. Because the said writ of attachment is not made returnable according to law.”

This motion was sustained by the court below, and the writ was quashed and the proceedings dismissed. To reverse this decision a writ of error is prosecuted in this court.

The inquiry arises here, was there error in the decision of the court below in sustaining the motion to quash for the reasons assigned % This brings ns to the consideration of the reasons in the order in which they are presented. The first and second reasons urge the insufficiency and uncertainty of the affidavit. In Morrison v. Fake, ante, this court classed the cases in which an attachment is authorized to issue, by the act concerning the writ of attachment (Rev. Stat. 165), into six classes. The 6th is, “that such debtor is about fraudulently to remove, convey, or dispose of his property or effects, so as to hinder and delay his creditor: ” And the court said: “We find it to be practiced in the Territory, to set out .this cause in the disjunctive, as set out here, and we are not disposed to change it. We are not disposed to confine the party to the use of one of the words, “ remove,” “ convey,” or “ dispose,” but he may use one or all at his pleasure; also the words, “property,” or “effects.” In a case of fraud it may be difficult to obtain satisfactory information whether a man is removing or disposing of his property. Clearly, the party cannot set out two causes of attachment in the disjunctive. Both these points seem to be settled in 3 Watts, 144.”

The proceeding by attachment being a departure from the common law, and a violent remedy, the court in that case went as far in favor of the proceeding by attachment, as could be reconciled with any adjudications on the subject in former cases, and cannot go beyond the rule there laid down. If the affidavit in this case conformed to that rule, it would be sustained by the court; but *225upon examination, insufficiency and uncertainty are apparent on tbe face of the affidavit, in respect to the rule referred to. The affidavit is in these words: “has good reason to believe, and does believe, that the said Low is about fraudulently to remove his property, convey or dispose of the same, so as to hinder or delay this deponent. ” It is uncertain, and therefore insufficient in this, that according to the acknowledged rules of grammatical construction, the adverb, fraudulently, qualifies the word ‘£ remove 5 ’ only, and not the words “ convey or dispose ; ” and the words “ so as to hinder or delay this deponent,” refer to the words “ convey or dispose ” as their antecedent, and not to the words “,fraudulently remove /” thus presenting no sufficient and certain cause for issuing the attachment. For it will not be insisted that the words “about fraudulently to remove his property,” without the qualifying words, “ so as to hinder or delay this deponent,” would be a sufficient ground upon which to award the writ of attachment. Nor that the words “ convey or dispose of his property so as to hinder or delay this- deponent,” without the qualifying-word, “fraudulently,” prefixed, would be a sufficient ground for the same purpose. The affidavit in this respect should be so direct, positive and certain that upon a public prosecution on the same charge, supported by proof, the defendant could be convicted. There may be, and doubtless are, different opinions about the construction of the meaning- of that part of the affidavit quoted; but this is an argument against its certainty and sufficiency. It should be entirely free from any question or doubt.

We are decidedly of opinion that the district court did not err in entertaining the motion, quashing the writ and dismissing the proceedings on these grounds.

The third and fourth reasons in support of the motion to quash, relate to the sufficiency of the certificate of William N. Seymour, supreme court commissioner, *226indorsing satisfaction on the affidavit; and that the writ of attachment is not made returnable according to law.

The court is not called on to consider the merits of these objections as the motion must have been decided by the district court mainly on the first and second grounds assumed in its support. We have, however, examined the objections, and are of opinion, that the indorsement of satisfaction of itself, is sufficient. The satisfaction is of fact, and not of the legal sufficiency of the affidavit. We are also of opinion that the writ, although not in the usual form, is made returnable within the meaning and intention of the law.

Judgment affirmed with costs.