Thornburgh v. Hand

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 credi [562] tor, 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. [563] 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 [564] 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.