3 Nev. 141 | Nev. | 1867
Lead Opinion
Opinion by
concurring,
dissenting.
The plaintiff in this ease brought suit against the defendant, a corporation, for the price of certain brick alleged to have been manufactured under the provisions of a special contract with the defendant. At the time of bringing suit the plaintiff also sued out an attachment against the defendant’s property. The suit was commenced, and the attachment sued out on the sixteenth of October, 1866, but the affidavit of indebtedness, etc., had been made on the fifth of October, some eleven days before the suit was brought.
The answer of defendant denies having entered into the alleged contract, and on the trial defendant also relied on the 6 2d section of “ An Act in regard to Conveyances, etc.,” which provides that certain contracts for the sale of chattels shall be void, unless a note or memorandum of such contract shall be made in writing, etc.
When the cause was called for trial, the defendant’s attorney submitted an affidavit showing the absence of a material witness and what he expected to prove by said witness. The affidavit was sufficient, so far as regards diligence, materiality and the likelihood of the witness being present within thirty days, the time for which a continuance was asked. The plaintiff consented to admit the absent witness would swear to the facts stated in the affidavit for continuance. Upon this admission, the Court refused a continuance, to which ruling defendant excepted.
We think, under the statute, the Court certainly had the discretion, if it was not an absolute duty, to deny the continuance under this state of facts.
The next point made by defendant is, that the Court refused to strike out a part of plaintiff’s testimony, in which he states the contents of a certain written order (the order itself not being produced) given by the managing agent of the corporation to him.
There is no foundation for this exception. The testimony of plaintiff is, that the agent offered to give him an order of a certain character; that he took it and passed it to a certain party. He did not attempt to state the contents of the order. It could not be inferred from the evidence that he ever read the order. But the order was of no consequence, and whatever its contents, it did not affect the case in any way.
The evidence of W. A. B. Cobb was confirmatory of that of the plaintiff, and contradictory of that of Catherwood, a witness for defendant, and therefore was properly received by the Court.
The contract, as alleged and proved, was not a contract for the sale of brick, but a contract for the manufacture of brick for the defendant at a place and out of clay selected by defendant’s agent. This case does not come within the provisions of the 62d section
The fact that plaintiff placed in the kiln more brick than would fill his contract, made no difference. The main object and motive of the plaintiff was, if we are to believe his testimony, to carry out his contract. His having made more brick than his contract called for, whether it was for the purpose of being sure to have enough to fulfill the contract, or for the purpose of sale to others, could make no difference.
That part of Catherwood’s testimony which related to a difficulty between plaintiff and Dr. Portz about fire brick was properly excluded. It has nothing to do with this case.
As a general rule, when a person undertakes to manufacture an article for a given purpose, there is an implied warrantee that it
The instruction, that if the jury believed the brick were worthless they should find for defendant, was properly refused for several reasons. Pirst — There was not a particle of proof to show that they were worthless for ordinary purposes. Second — It was not by any means satisfactorily proved that the bricks were ever expected or intended to be fire bricks by the contracting parties, and if they were, it was not shown that the failure in this respect was the plaintiff’s fault. The testimony of plaintiff and of Catherwood are at issue on almost every point. If we believe the plaintiff, his case was fully made out. If, on the other hand, we believe Catherwood, plaintiff had no cause of action. Plaintiff is certainly corroborated, to some extent, by the testimony of Cobb. The jury seemed to have believed plaintiff, and there is no reason for disturbing the verdict.
The only remaining point to be considered is the action of the Court below in refusing to quash the attachment. Our law authorizes the plaintiff at the time of issuing summons, or at any time afterwards, to procure an attachment upon the filing of an affidavit showing the existence of certain facts when the attachment is applied for. The question is, did the affidavit, filed on the sixteenth of October, show the existence on that day of the debt sued for ? Appellant contends that it did not. The affidavit, says
This is a rather embarrassing question. Greenleaf, in treating on the subject of legal presumption, (see Vol. 1st of Greenleaf on Evidence, Sec. 41) says: “ When, therefore, the existence of a person, a personal relation or a state of things is once established by proof, the law presumes that the person, relation or state of things continues to exist as before, until the contrary is shown, or until a different presumption is raised from the nature of the subject in question.” If we are to be guided by this rule, the affidavit having shown the debt to be existing and past due on the fifth of October, the legal presumption would follow that it remained due on the sixteenth of October. If a debt was shown to exist, but not due, after the day of its falling due, there might perhaps arise a legal presumption that the debtor had complied with his contract and paid, as per agreement. But when it is once established that there has been a breach of contract and the debtor has failed to pay at the right time, we are inclined to think there is a fair legal presumption arising that the debt continues due and unpaid until something is shown to the contrary, or there is such lapse of time as to raise a contrary presumption. Eleven days would not be sufficient for such presumption.
The affidavit, aided by this legal presumption, was sufficient to make a prima facie case for the issuance of an attachment.
Construed with reference to the legal presumption above referred to, it did show the existence of a debt due from defendant to plaintiff at the time of the issuance of the attachment. This was a literal compliance with the terms of the statute. It is true the evidence was not so satisfactory as it would have been if the affidavit had been made simultaneously with the issuance of the writ.
The remedy by attachment is a harsh one, and it may be claimed that a plaintiff should not be allowed to avail himself of it unless he makes an affidavit showing the facts upon which he bases his application for the writ with as much certainty and precision as such facts are capable of being shown by his own testimony — that defendant should be protected from the issuance of so harsh a writ upon loose and uncertain showings.
In large counties, such as we have in this State, it would frequently be impossible for a creditor to make the affidavit for an attachment and send it from his residence to the county seat in one day, consequently a creditor living in some of the remote parts of the State would be compelled to travel several hundred miles in order to get an attachment, if we require the affidavit to be of the same date as the writ. We think it not necessary to make such rigid requirements of attaching creditors. If the attachment is improperly issued, the defendant may have it quashed on motion.
In some of our sister States attachment is, under certain circumstances, a means adopted for giving jurisdiction to the Court over the persons of litigants. The attachment of property is a substitute for the summons or personal notification of defendant to appear and answer. In such case the Courts have always required a rigid compliance with the law to confer jurisdiction on the Court. But when the attachment is issued, not to obtain jurisdiction, but merely to enable the Court to enforce its judgment, the Courts have been
In this case the affidavit was not, as we think, insufficient; and even if it was, according to the case cited it might have been amended. It appears to us that this rule allowing amendments to affidavits is a good one for this reason. The attachment may be issued not only at the commencement of a suit, but at any subsequent time before judgment. If the attachment is dismissed for informality in the affidavit, the plaintiff can immediately make a more formal affidavit and have the same goods again attached. The effect then of dismissing the attachment would be only to put the plaintiff to some costs, but not to afford any relief to defendant. Courts are always reluctant to do an act which makes costs for one party, but affords no relief to the other.
Drake on Attachment lays down the rule positively that an affidavit prior in date to the day of the issuance of the attachment is sufficient. (See Sec. Ill, and authorities therein cited.)
He also thinks that a motion to quash an attachment because of a defective affidavit should not be sustained, unless the plaintiff, after opportunity afforded, fail to make one more perfect.
The judgment of the Court below is affirmed.
I concur in the judgment.
Concurrence in Part
Dissenting opinion of
I fully concur in the opinion of the Chief Justice, delivered in this case, except that portion referring to the respondent’s affidavit for attachment.
In my judgment, that affidavit meets neither the letter nor spirit of the statute. The provisional remedies of the Practice Act were unknown to the common law. They are summary and harsh in their character, and should therefore be strictly pursued by liti
This the Legislature has endeavored to do by requiring the party suing out the attachment to make an affidavit of the existence of certain facts, and to give a bond or undertaking for the protection of the person whose property is to be attached. The affidavit required of the plaintiff is to some extent security to the defendant against the issuance of the writ in cases in which it is not authorized. The statute specifies the cases in which it may issue. “ First: in an action upon a contract for the direct payment of money, which contract was made or is payable in this State, and is not secured by mortgage, lien, or pledge upon real or personal property; or, if so secured, when such security has been rendered nugatory by the act of the defendant. Second: in an action upon a contract against a defendant not a resident of this State.” In this very awkward language the Legislature has pointed out the only cases in which an attachment may issue against the goods of the defendant. And that it might not issue in any other case, by the section following the one quoted above the party applying to have it issued is- required to make affidavit that the necessary facts do exist — to show by his own oath that it is one of those cases wherein an attachment is authorized. Whilst this affidavit is required, the defendant has some security against its issuance, except in a proper case; because if all the necessary facts be not sworn to the attachment should not be issued, and the fear of a prosecution for perjury will usually be sufficient to deter any false SAvearing as to the existence of those, facts. Protection for the debtor is doubtless the sole object of requiring the affidavit from the plaintiff. It follows, then, that the defendant has a right to insist that the writ shall issue in no case except it be one of those specified in the law,
The question then presents itself, whether the affidavit under consideration conforms to the requirements of the Practice Act. In my opinion it does not. Section 2, Laws of 1864-5, p. 223, declares that “ the Clerk of the Court shall issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, which shall be filed, showing first, that the defendant is indebted to the plaintiff,” etc. * * * * * “ Third: that the sum for which the attachment is asked is an actual bona fide existing debt, due and owing from the defendant to the plaintiff.”
This language is certainly explicit that .the affidavit must show that the defendant is indebted to the plaintiff, and that the sum for which the attachment is asked is an actual bona fide existing debt at the time the affidavit is filed. The affidavit must show that the defendant is indebted, and that the debt is due at the time the attachment is applied for, not that such facts existed eleven days before. If these facts do not exist at the time the writ is applied for, the plaintiff is not entitled to it. That they did exist eleven days before is not sufficient to authorize its issuance. Surely no argument is necessary to sustain this proposition. That the defendant is indebted at the time the attachment is applied for is therefore a material fact, and is indispensable to the right to have the attachment issued. Indeed it is not more necessary for the plaintiff to swear to the existence of a debt from the defendant, than it is for him to show by his affidavit that such debt exists at the time he applies for the writ; because if it did not exist at that time he is no more entitled to the attachment than if no debt had ever existed.
Is it shown by the oath of the plaintiff that the facts recited in his affidavit existed at the time he applied for the writ ? Certainly not.' Instead of the plaintiff’s oath that the defendant is indebted to him at that time, there is nothing but a presumption of law to support it. It is quite evident that in the intermediate time between the date of the affidavit and the application for the attachment, all the grounds authorizing it may have ceased to exist. The debt may have been paid, a mortgage or pledge may have been given to secure it, or the defendant, though perhaps not a resident of the State at the time the affidavit was sworn to, may have become so before the application for the writ. Hence the necessity for showing that the proper facts exist at the time of the application for the attachment. If the law requires anything, it requires the person seeking the issuance of the writ to swear that the debt exists and is payable at the time he applied for the attachment. As in my opinion nothing of the kind was done in this case, the attachment was improperly issued, and should be dismissed.
But a presumption of law is invoked in aid of the affidavit in this case, and it is claimed that as the plaintiff made an affidavit showing the necessary facts eleven days before application for the writ, the law presumes a continuance of those facts until the contrary is shown. Of the correctness of this rule of evidence there can be no doubt, but it seems to me that it is impotent to assist the plaintiff in this case. There may be a presumption of law that the state of facts sworn to in the affidavit continued up to the time the attachment issued; but that does not meet the requirements of the Practice Act, which makes it incumbent upon the plaintiff to make an affidavit that they did exist at that time. It seems to me totally inadmissible to substitute a presumption of law for an affidavit which is explicitly required by the statute. Such presumption as evidence is greatly inferior to that required by the statute, and much less satisfactory than the affidavit of the plaintiff would be. I do not think the attachment should be allowed to issue upon evidence inferior in its nature to that required by the law. If the Courts
I am aware that there are cases in New York which hold that a defective affidavit may be bolstered up by supplemental affidavits, and that in that way attachments have been maintained which could not be supported upon the original affidavit. The plaintiff in this case, however, is not holpen by these authorities, for the reason •that he made no effort or offer to cure the defect complained of. I am also aware that it has been held in South Carolina and in Missouri that' an affidavit made as this was, several days before the application for the writ, is sufficient. I do not know, however, what the statutes may be upon which these decisions are made, and as they seem to be in direct conflict with the clear spirit and letter of our statute, I am not inclined to follow them.
These being my views on this point, I am constrained to dissent from that portion of the Chief Justice’s opinion which refers to it.