Wilke v. Cohn

Department No. 2, Myrick, J.: This is an appeal from an order dissolving an attachment. The affidavit for attachment was in the form required by the statute as to statement of the indebtedness upon a contract made in this State, and concluded with these words: “ And that the payment of the same has not been secured by any mortgage or lien upon real or personal property; or, if originally so secured, that such security has, without any act of the plaintiff or the person to whom the security was given, become valueless.” Upon this affidavit the defendant moved to dissolve the attachment, which motion was granted. The objection to the sufficiency of the affidavit is made, that whereas the statute gives a creditor a right to have his debtor’s property seized to respond to a judgment in either one of two instances—viz., where there has been no security, or, there having been security, such security has without any act of the creditor become valueless—this affidavit, stating both in the alternative, in fact states neither. It has been held in several States, and is repeated in Drake on Attachments, § 102, “ that where the disjunctive or is used, not to connect two distinct facts of different natures, but to characterize and include two or more phases of the same fact, attended with the same results, the construction that it was uncertain which state of facts existed was inapplicable. For instance, where the statute authorized an attachment when the defendant absconds or secretes himself, it was considered that, from the difficulty of determining which was the fact, the disjunctive or did not render the affidavit uncertain.” Absconding is one thing, secreting is another; yet the creditor may not always be able to ascertain which exists : persons absconding or secreting themselves do not usually publish their doings. But, in regard to security, a creditor knows, or ought to know, whether there has been security given. If security has been given, he knows, or ought to know, whether the security has been rendered valueless without his act. If he have something in his hand as security which was once of value, he can cer [214] tainly tell whether or not any security was ever given. If the security has become valueless, no man knows better than he whether his act contributed thereto. It would be proper to follow the language of the statute, in saying that payment had not been secured by any mortgage or lien upon real or personal property, or any pledge upon personal property, because it includes two or more phases of the same fact, attended with the same results, namely, that no security had ever been given ; but to use the above language, and then say, “ or, if originally so secured, such security has become valueless,” is not to state either with certainty. It does not say that no security was ever given ; neither does it say that security was given, but that the same has become valueless. We are not directed to any decision of this Court upon the point directly before us, but there are cases involving parallel principles. Thus, in Hawley v. Delmas, 4 Cal. 195, where the affidavit stated the indebtedness to be “ upon a contract expressed or implied,” it was held insufficient. In the case at bar it was urged that the ultimate point to be reached is, that no security exists now. As well might it have been urged in Hawley v. Delmas that the existence of a contract was the ultimate point. So in Botsford v. Howell, (52 Cal. 158) a party applying to purchase land under § 3443 of the Political Code, stated, in the exact words of the statute, that he did “ not know of any valid claim to the same other than his own, and that there were no settlers thereon, or, if there were, that the land had been segregated more than six months,” it was held that the application did not conform to the statute; that the facts must be stated directly and positively, and not in an alternative form. It was urged on the argument, that a creditor may have had frequent transactions with his debtor, and may not always be able to determine whether or not the particular debt is included in the list of secured debts. We can only say, that if creditors wish to be within the statute giving the provisional remedy by attachment, they must so keep knowledge of their affairs as that they can state the facts. If a creditor has never had security, it is very easy to say so ; if he once had security, [215] and the security has become valueless without his act, it is as easy to say so. Order affirmed. Thornton, P. J., and Sharpstein, J., concurred.