Thornburgh v. Hand

| Cal. | Jul 1, 1857

Lead Opinion

At the January Term, Murray, C. J.,

delivered the opinion of the Court—Terry, J., concurring.

This was an action of replevin. The defendant justified the taking under a writ of attachment.

Two errors are assigned by the appellant; First, the refusal of the Court to permit the defendant to ask a witness, on his cross-examination, “ in whose possession the property was some six months before the seizure thereof by the defendant;” and second, in refusing to admit the writ of attachment and note, with parol proof that it was the same indebtedness on which the suit was brought, out of which the attachment issued, as a sufficient predicate on which to attach the sale of the plaintiff.

Upon the first point there can be no doubt of the correctness of the ruling of the Court below; a witness cannot be cross-examined, except in reference to matters concerning which he has been examined in chief.

The questions asked of the witness, were with regard to the possession of the-property at the time it was taken by the defendant, and an examination of the fact of possession six months before, was in no way responsive to the direct examination. Even if the rule were different, the question was improper until the defendant had first laid the foundation for impeaching the sale.

The plaintiff contends that the object of the question was to establish the fact, that the plaintiff was acting as the agent of Burtis, who, it is alleged, was the owner in fact of the property. Whatever may have been the purpose of the question, the object was not stated to the Cout, and in the absence of an explanation on the subject, the object was properly excluded. The defendant was not injured by this ruling; for if it was necessary to establish this fact in defence, he might have recalled witness at a subsequent stage of the proceedings.

The second point is not without difficulty, and is important as a rule of practice.

It is well settled that a creditor at large cannot impeach a sale of property by his debtor to a third person, until he has obtained judgment, taken out execution, and the same has been returned unsatisfied; or unless he claim by virtue of some writ or process giving him a specific lien thereon; for as between the parties the sale is valid. An officer who seizes property in the hands of the debtor, may justify under the execution or process, but when he takes property from a third person who claims to be the owner thereof, if on execution, he must show the judgment and execution; if on attachment, the writ of attachment, and, as we think, the proceedings on which it was based.

It is contended by the appellant that it is only necessary to show the indebtedness and the writ; that this is sufficient evidence to establish the right of the officer on behalf of the creditor, or the relation of the creditor, so as to enable him to attach the sale. In support of this proposition, the case of Damon v. Bryant (3 Pick., 412), is relied on. That was an action of trespass for taking goods “ from the possession of a third party.” On the trial, the officer justified under a writ of attachment, but introduced no evidence of a debt or judgment, which it was insisted was necessary. The judgment was reversed on this ground, the Court remarking generally, that a “judgment must be shown, where the officer justifies under an execution, or a debt, if under attachment.”

It may be that the proof of indebtedness, together with the writ, would be sufficient under the laws and practice of Massachusetts, particularly if the suggestion of the counsel for the respondent be correct, that, in that State, the attachment issues as a matter of course on bringing suit, but we are far from being warranted in inferring, from the general words of the opinion just quoted, that the writ and mere parol evidence would be sufficient. There being no debt shown at all, it was unnecessary for the Court to say what strictness should be required in establishing that fact. Admitting, however, that the opinion goes the length contended for, then we maintain that it is not correct.

There is no reason, if in case of a seizure under execution, a judgment must be shown, which is the basis of the execution and prima facie establishes the debt and regularity of all the proceedings from the filing of the declaration, and which is, in its nature, the highest legal evidence of the right to issue process, why, in a case of the seizure of property by attachment, the same strictness should not be required.

The fact that a party is indebted to another is not sufficient of itself to warrant the issuing of an attachment. The party is required to make affidavit that the debt sued on arises out of a contract for the direct payment of money, made or payable in this State, and is not secured by mortgage on real or personal property j this affidavit must be made in a suit pending, and be accompanied with a bond, and the suit, affidavit, and bond, are .a necessary predicate for the writ, and in our opinion, should be shown in evidence the same as a judgment.

This, we think, follows as a legitimate conclusion, from the fact that the act of issuing an attachment is merely ministerial, and there is no intendment in favor of the regularity of the process; for aught we may know, there never may have been any suit commenced, bond given, or affidavit filed, and yet, the production of a writ, improvidently issued, and proof of a debt due the attaching creditor, would, it is contended, be sufficient to cure all these defects.

We have not been able to find many authorities which go directly to this point, yet, so far as we have examined, we are satisfied that our position is correct.

In Noble & Eastman v. Holmes, (5 Hill, 195,) which was an action of replevin for a yoke of oxen, tried in the Circuit Court of Rew York, the defendant justified the seizure of the cattle by an attachment issued to him by a justice of the peace against one Lattin. The plaintiff claimed title by purchase from Lattin previous to the issuing of the attachment. A question was made whether the purchase by the plaintiff was not fraudulent as to Lattin’s creditors. The plaintiff insisted that the defendant must show the necessary proceedings to give the justice jurisdiction to issue the attachment. The Judge overruled the objection, and decided that the process being regular on its face, was a protection to the defendant. A verdict was had for the defendant, and the plaintiffs applied to the Supreme Court for a new trial. In giving the opinion of the Court, Judge Bronson uses this language:

“ Under the ruling of the Judge, the jury may have found a verdict for the defendant, although they believed that the plaintiffs had a good title to the oxen, as against Lattin. If they believed that fact, the defendant had no right to take the property from the plaintiffs by virtue of the attachment against Lattin, without showing that the sale to the plaintiffs was void as against creditors. The sale could not be impeached by a creditor at large; it must be a creditor having a judgment and execution, or some other process which authorized a seizure of the goods. As a general rule, process regular on its face is sufficient for the protection of the officer, although it may have been issued without authority. But when the officer attempts to overthrow a sale by the debtor, on the ground of fraud, he must go back of his process, and show authority for issuing it. If he act under an execution, he must show a judgment; and if he seizes under an attachment, he must show the attachment regularly issued. If Lattin had sued, it would be enough for the defendant to produce the attachment; but it is otherwise as against the plaintiffs, who are strangers to the attachment, and claim under an older, and therefore better title, unless it can be impeached by fraud.”

It may be contended that this decision turned upon the fact that the writ was issued by a Court of inferior and limited jurisdiction, and therefore there was no intendment in favor of the regularity of its proceedings. This fact does not appear to have entered into the consideration of the Court, and the inference is rebutted by the remarks of the Court, that “ if Lattin had sued, it would be enough for the defendant to produce the attachment,” which would have been improper; for an intendment of the regularity of the proceedings of an inferior Court would be no stronger against the debtors than a third party.

“ In Crawford v. Clute & Mead, 7 Alabama Rep., 157, the plaintiff sued in assumpsit the endorsers of a note, the defendants pleaded a writ of garnishment, issued from the Circuit Court of the United States, upon a judgment recovered therein, by which the debt on the note was placed in the custody of the law j to the plea, a demurrer was interposed; the demurrer being overruled, the general issue was pleaded, a trial had, and judgment for plaintiff. On appeal, the question was as to the sufficiency of the plea, and the Court, in giving its opinion, says :

“ The plea in this case is bad, because it does not show that the Circuit Court of the United States had jurisdiction to issue the garnishment. Waiving all consideration of the question, that it is not averred in the plea that the Circuit Court had jurisdiction to render judgment against David Jones, the assignor of the plaintiffs, and also, whether the Courts of the United States can issue process of garnishment upon their judgments, to give the Court jurisdiction, it should have been averred in the plea that the affidavit was made, which is the authority for issuing the process under the statute of this State. (Clay’s Dig., 259, §§ 1, 2.) A judgment-creditor has not the right, as a consequence of his judgment, to sue out garnishee, process, but to entitle him to it, must make the affidavit which the statute requires.

“ The necessity of this averment is more apparent when we consider that the process is not issued by a judicial officer, but ex parte, by the clerk of the Court, on the application of the plaintiff, and if any intendment in favor of the regularity of the proceedings could be indulged in, which we have seen is not allowed in such a plea as this, it could not be made in favor of a mere ministerial act such as this is. It was, therefore, necessary that the plea should have contained an averment that the proper affi davit was made, without which, the Court had no jurisdiction.”

It is contended, that this case does not fall within the rule laid down in Crawford v. Clute & Mead, because it appears that the writ was directed to the coroner of Tuba county, by an order of the Judge of the Sixth Judicial District, based upon the affidavit of the plaintiff, that the sheriff was interested in the property to be attached. We are not aware of a provision of our statute which requires such an order.

In our opinion, the writ might have been directed to the coroner by the order of the plaintiff, and, if it had been sent to the sheriff, it would have been his duty, if interested in the subject, to have transferred it to the coroner. If, however, the District Court had any authority, upon a suggestion, to make the order, it only goes to the direction of the writ, and not to the propriety of issuing it. Cases might doubtless be found maintaining the same position, but we are satisfied, upon the authority of those cited, that our conclusion is correct.

Judgment affirmed.

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Rehearing

On the re-hearing, at this Term, Murray, C. J.,

delivered the opinion of the Court—Burnett, J., and Terry, J., concurring.

In our former opinion in this case, we consider two propositions: First, as to the refusal of the Court to allow the defendants' counsel to cross-examine the witness Thornburgh; and second, whether the officer was required to establish anything more than the debt and writ of attachment, to enable him to attack the sale from Burtis and Foster to the plaintiff, on the ground of fraud. On the second point, we still adhere to our opinion, and notwithstanding the able argument of counsel, and the authorities adduced, we see no good reason for doubting its correctness.

It will hardly be expected that we should again go into a review of all the arguments that might be adduced for or against the proposition.

It may be stated, in limine, that every sale of property and personal chattels is good as between the parties, and cannot be attacked for fraud, except by a creditor, who has obtained judgment, and taken out execution, which has been returned unsatisfied in whole or part. To this general rule there is one exception, and that is in cases where the statute gives a lien upon a seizure by attachment. In the latter case, as the proceeding is of statutory origin, and unknown to common law, it is evident that all the provisions of the act must be strictly complied with. It is a harsh remedy at best, and a party who seeks to enfore it against another, should be held to a strict accountability and compliance with the law.

The appellant contends, that where the officer seizes property in the hands of a third party, which is alleged to have been fraudulently transferred, it is only necessary to show the writ and prove the debt, thereby establishing the relation of creditor, and that when this relation is established, then the sale may be attacked for fraud.

It requires something more than a mere indebtedness between the parties to justify the taking of property from the possession of a third person. A mere creditor cannot, as before remarked, impeach the sale until he shows that he has a judgment or lien; neither can the officer who represents him do so. The debt, of itself, gives no right to seize the property, but the attachment, and it is essential for its validity that it should have been issued in conformity with the law. If the officer seizes the property of the debtor, and the writ be regular on its face, it is a sufficient justification to him; for the defendant may, if the attachment has been improvidently issued, move to have it quashed, or bring a suit upon the undertaking, but a third party, a stranger to the record, could not interfere, and, therefore, it would seem but justice, that before any right could be established against him, by reason of a proceeding to which he was not a party, that its regularity should be shown.

If the officer seizes the goods of the judgment-debtor under a fi. fa., as against the debtor, it is only necessary to show the writ; but as against a third party, it would be necessary to show both the judgment and execution, and the reason of the rule is said to be, because the party against whom the judgment was rendered might have applied to set it aside, or have reversed it on appeal if it was erroneous, but having acquiesced in it, it is presumed to be correct; while on the other hand, no such intendment would be indulged in, against one who was neither a party or privy thereto.

The counsel for the appellants have been unable to find a single authority that militates against our former opinion, except the case of Kirksey’s Trustees, etc., v. Dubose, 19 Alabama, 50, in which the following loose dictum of the Judge who delivered the opinion of the Court appears: “ If the attachments were regular on their face, and authorized a levy and seizure of the defendants’ property, the sheriff is not bound to go beyond them and show bonds and affidavits, or that there was a subsisting debt on which they might properly issue.” Governor v. Gibson, 14 Ala.

In the first place, this expression of opinion was not neceessary to a decision of the case, and in the second, if necessary, it was erroneous, being in direct conflict with the former decisions of the same Court, and of every authority cited by. the appellant, and lastly, it is not supported by any reasoning of the Court, or by the case of Governor v. Gibson, which it cites, and which simply holds that “it is a good defence for the sheriff, when sued by the plaintiff, in the proceeding for not making goods available, to satisfy process under which they were seized, to show that they were taken from his possession under a writ regularly issued.”

There is nothing in either of these cases to shake the decision of Crawford & Clute v. Mead, 7 Ala.

The counsel for the appellant relies on the case of Swan & Blanch v. Bull, decided some three years ago by this Court. This case, by some accident, has never been reported, and has been unknown to the bench and bar, so that it cannot be claimed with propriety that he was misled by it; in fact, on the former argument no allusion was made to it whatever. On examination of the record in that case, I find that'the opinion of the Court, though apparently in the teeth of all .the authorities, is sustained by the case made.

The plaintiff did not succeed in establishing a right prima facie to the property. The sale by which they claim title was only colorable, or in fact, it was shown by their own witnesses, that it was fraudulent, and that they were bailees of the defendant in execution. Under these circumstances it was not necessary to show a debt. The rule is, that if a sale is made which was intended to be good between the parties, it cannot be attacked until the officer shows that he is entitled to represent a creditor; but if the sale is merely colorable, and it appears from the testimony that it never was the intention of the parties to pass the title, that the plaintiff is but the agent or bailee of the defendant" in attachment, then the writ would be a sufficient justification for the officer, as it is evident that an agent, by reason of a colorable or fraudulent sale, would be in no better condition than his principal.

The rule is thus laid down by Starkie, in his work on evidence, “ If the assignment and delivery of possession were merely colorable, and the property still remained in the debtor, against whose goods the execution issued, the sheriff, it seems, would be entitled to a verdict without proof of the judgment, the plaintiff having no property in the goods.” It was doubtless on this view of the law that this Court based its former opinion, and we are prepared to maintain its correctness. This rule brings us to the examination of the first assignment of error, viz., the refusal of the Court to permit the defendant to ask the witness, in whose possession the property was some six months before the seizure.

The plaintiff had established title by possession, but had not introduced any bill of sale or evidence tending to establish a sale. This evidence was the weakest that could be produced to establish title. Having, however, shown possession, we think it was competent under any rule of evidence, to cross-examine the witness for the purpose of establishing the nature and character of the plaintiff’s possession; to draw from him, if possible, the fact whether such possession was a mere cover to hide the defendant’s property, and also, for the purpose of testing the witness’ means of knowledge and information on this subject.

It is true, that in our former opinion we thought that the question was improper, but our minds were not directed to the distinction between bona fide and colorable sales. Since that time our attention has been called to the case of Chenery v. Palmer, 5 Cal., (which was not then reported, and which had escaped our recollection,) where this same point was decided. We are unable to see any difference between the two cases, and must follow the rule there laid down.

Judgment reversed, and cause remanded.