Wilkins & Co. v. Hillman, 8 App. D.C. 469

Wilkins & Co. v. Hillman

8 App. D.C. 469 | D.C. | 1896

Mr. Justice. Morris

delivered the opinion of the Court:

Undoubtedly the proper mode for bringing up a case of this kind for review is by bill of exceptions. The law provides for appeals from orders of the Supreme Court of the *475District of Columbia quashing writs of attachment; and inasmuch as those orders are usually rendered, in pursuance of the statute, upon testimony taken orally and at chambers before one of the justices of the court below, and as it would seem to be the purpose of the act of Congress authorizing the appeal that this- court should review the order both upon the law and upon the facts, it is necessary, in the absence of any finding of facts by the trial justice, that the testimony should be reproduced in. such form as that we might determine from it whether the trial justice was justified in the order rendered by him; The question to be determined in cases like the present is usually a single issue of fact. But when it is desired to have the adjudication of the trial justice on that question reviewed in this court, it is proper that it should be brought before us in the mode usual in the trial of causes at the common law by requests for rulings upon the testimony presented to the trial justice upon the conclusion of that testimony, exception then and there taken to his ruling, and such exception in due time thereafter fashioned into a formal bill of exceptions purporting to have been taken at the time of the trial, as in other cases. And this mode of procedure we will be disposed to insist upon hereafter.

But in view of the fact that there is a virtual agreement between counsel as to the testimony that was adduced in this case, and the ruling of the trial justice thereon, and that the trial justice has so authenticated the proceedings before him; .and in view also of the fact that, at or about the time of the trial of this case by the trial justice below, the appellant applied to this court for the formulation of a special rule to direct the course of procedure in such cases, which rule we then declined to make, we deem it due to the cause of justice to hold, that the statement here of the trial justice certifying to the proceedings that were had before him and by him, which, under other circumstances, as was said by the Supremé Court of the United States, in the case of Suydam v. Williamson, 20 How. 433, would *476have to be regarded merely as “a report of the judge who presided at the trial,” and not as a part of the record, should be considered as the equivalent of a bill of exceptions — although, as was said by the Court of Appeals of Maryland in the case, quite similar to the present, of Dumay v. Sanches, 71 Md. 512, our decision in this instance is not to be drawn into a precedent for the government of future cases.

Considering this cause upon its merits, we find ourselves constrained to differ from the learned justice who tried the cause’ in the court below. We are of opinion from the testimony that the appellee went out of the jurisdiction for the purpose of evading the service of ordinary process, and to hinder and delay his creditors. His mercantile obligations were about to become due. It was his duty to provide for them. Instead of doing so, he took all the cash in his place of business and went away, leaving no information as to where he went or when he would return, or whether he would return at all. The persons composing the appellant corporation made solicitous inquiry for him. They received no satisfactory * information from his employees or from his father-in-law, who were the only per-, sons that could reasonably have been expected to give such information. These all .professed ignorance of his whereabouts ; and some of them, according to the testimony of the witnesses for the appellant, which in this regard at least seems-most reasonable, evinced considerable solicitude on account of his absence and a great desire that he'should return-to attend to his affairs. Under these circumstances, the managers of the appellant corporation were justified in assuming that he had absconded, and in taking 'steps accordingly to protect their own interests. According to what we must regard as the great preponderance of testimony, the appellee himself, after his return, several times admitted that he had gone away to. evade his creditors ; and the account which he gives of his movements, in New York, and of his alleged attempt to procure a loan of $5,000, which would have enabled him to be relieved' of all *477his then existing financial embarrassments, rather tends to confirm the justice of the suspicions entertained by his creditors, and which induced them to sue out their writs' of attachment.

It would serve no good purpose to enter at length into a consideration of the testimony in -this case. That the appellee went out of-the District of Columbia at a critical period in his financial affairs, when the dictates of ordinary . prudence and good and honest business management would have demanded his presence here, is conceded. The question of his purpose in so going out of the jurisdiction, which is the question upon which the right to the issue of a writ of attachment depends, is one which in its nature cannot ordinarily be proved by direct and positive testimony, but only by circumstances. The wholly unexplained circumstances of this case, which it was incumbent on the appellee to explain satisfactorily, if he would relieve himself from the just inference to be drawn therefrom, and • which he has entirely failed to explain, warranted the conclusion deduced from them by his creditors that he had absconded. If his purpose in going away was in part to raise a loan to relieve him from his financial embarrassments, as he now pretends, and he had succeeded in. making. satisfactory arrangements for such loan, he does not explain why he did not cariy those arrangements to a conclusion and settle with his creditors, as he might readily have done, so far as this record discloses. If we add to this his own subsequent admissions in regard to his purpose in going away, which, as we have intimated, we regard as sufficiently proved by the great preponderance of the evidence,There would seem to be no,room- to doubt that the contingency had arisen in which the appellant was justified in suing out a writ of attachment.

Entertaining these views of the testimony, we must reverse the order appealed from, with costs ; and remand the cause ' to the court below for further proceedings therein not inconsistent with this opinion, and in accordance with law. And it is so ordered.