17 Mich. 473 | Mich. | 1869
This was a proceeding instituted by Prout before the justice against William II. Proctor and Oliver A. Proctor, under the act for the punishment of fraudulent debtors, Gomp. L. Oh. 166 — and the defendant, William II. Proctor, brings the case before us .upon a certiorari to the justice.
Prout’s claim purports to be based upon a judgment recovered by him before the justice against both the Proctors upon contract. The warrant was issued against both, but served only upon William II., and all the proceedings before the justice under the warrant were against him alone.
On the hearing before the justice, ho objected to the sufficiency of the affidavit on which the warrant issued, because- it did not state any sufficient evidence to give the1 justice jurisdiction as against him.
By the fourth section of the act the warrant is not to be issued “without satisfactory evidence by the affidavit of the plaintiff, or some other person,” of the facts required by the statute, and while the affidavit may state generally the grounds of the application upon belief only, we understand the rule to be well settled that, to show the grounds of his belief, he must set forth such facts and circumstances within his own hnowledge, as will authorize the officer who is to issue the warrant to find such a state of facts as required by the statute to authorize the proceeding. And if the plaintiff is not himself personally cognizant of the facts and circumstances relied upon, he must procure the affidavit of some one who is thus personally cognizant of them. The warrant can not be issued upon hearsay, nor upon any statement, however positive, founded upon hearsay.
And in the ex parle application for this extraordinary remedy, there being no opportunity for cross-examination as to the matters set forth in the affidavit, we think the true and only safe rule is that the affidavit should show upon its face, with reasonable certainty, that the affiant is
The portion of the affidavit which purports to set forth the reasons for the plaintiff’s belief is as follows: “And the grounds for that belief are that they (William H. and Oliver A. Proctor) refuse to pay said debt or judgment; that Oliver A. Proctor has left said county and taken all or a part of his property with him to parts unknown to this complainant, or concealed the same; and that William H. Proctor stated he would not pay' said judgment, and has taken notes in his mother’s name for money belonging to him, and stated that he did it to keep it from his creditors, and that he now resides in the City of Coldwater, in said county, and keeps his property secreted in the name of his wife, as this deponent has been credibly informed, to prevent paying his debts.”
Of this affidavit, it will be noticed: First, That it does not show that the two Proctors had any joint property, nor anything from which such an inference can be drawn. Second, The statement that “Oliver A. Proctor has left the county and taken his property, etc.,” has no possible tendency to show that William H. Proctor has done the same, nor does it tend to sustain any of the charges contained in any part of the affidavit as against him.
• The statement that William PI. Proctor keeps his property secreted in the name of his wife, etc., is expressly declared to be upon information and belief, and need not, therefore, be noticed.
The only remaining portion which can possibly be claimed to prove facts and circumstances sustaining any ground upon which a warrant could issue, is, “'that William H. Proctor stated that he would not pay said judgment, and has taken notes in his mother’s name for money
As he was making the affidavit ex parte, to satisfy the Justice of the necessary facts on which to obtain a warrant, we may take it for granted that he stated his case as strongly as he thought the facts would warrant; and that if the statements had been made to him, or in his hearing— as this would make out his case beyond dispute, while the general statement might leave it at least doubtful — we may take it for granted he would so have stated his case, if the facts would warrant it. Under such circumstances, in giving a construction to his affidavit, we can not properly construe this general statement as a declaration on his part, that he was personally cognizant of the statement alluded to. Hence we can not treat these general statements as proper evidence upon which the justice could act in granting the warrant.
The allegations of the affidavit as to defendant’s statements being rejected, the other allegation that “the defendant took notes in his mother’s name for money due to himself,” if not equally open to the same objection, has no bearing upon any case made by the affidavit for a warrant; as there is no allegation that defendant had ever been requested to apply this money or the notes upon the judgment.
We think the justice acquired no jurisdiction by the affidavit as against William H. Proctor, and that all the proceedings under the warrant were void.
The judgment or determination of the justice must therefore be reversed, with costs of both, courts to the plaintiff in the certiorari.