Wilson v. Arnold

Manning J.: In Drew vs. Dequindre, 2 Doug. Mich. 93, the affidavit was sworn to on the 10th of June, and the writ was issued on the 12th of that month; and it was held the affidavit should have been sworn to on the day the application was made for the wi’it. That case is decisive of the present. The phraseology of the statute under which the proceedings in that case were had, differs, it is true, from that in the present statute. In the Revised Statutes of 1838, the language is “immediately preceding the time of making application for such attachment.” In the present law it is “ immediately preceding the time of making such .affidavit.” — It. 8. of 1846, page 514; Comp. Laws, §4743. We do not think this difference in the phraseology very material, or that it was made with an intention of changing the law. If the attachment-law in the Revision of ’46 was in all respects a copy, with the exception stated, of the Revision of ’38, there would be some ground for saying, and it might well be argued, that the change in the phraseology was made with a view of changing the law. But to such an argument it might very pertinently be asked, Why, if the Legislature intended to change the law, they did not fix the time in which the writ might be issued after the affidavit was made, or say within a reasonable time thereafter? The two attachment-laws are so dissimilar, it can with no propriety be said the latter is a copy of the former, with a few slight alterations or changes, made necessary by experience between the two Revisions. It was argued the plaintiff should have a reasonable time after making the affidavit to sue out the writ. What is a reasonable time? In one case, it may be two days; in an [104] other, double that time; and in another’, instead of days, weeks might not be thought unreasonable. One of the affidavits on which the attachment was issued in the case before us, was sworn to, in the city of New York,'sixteen days before the writ was issued. By what facts and circumstances is the reasonableness of the time to be determined? By the residence of the party? By the facility of intercommunica; tion between different points? Are railroads, and accidents occurring on them, the state of the weather, and the transportation of the mail, to be taken into the account? We fear if we had power to give such a construction to the statute, and should so construe it, more evil than good would be done by it. The uncertainty it would throw over the title of real estate taken on attachments, would more than counterbalance its advantages. A jurisdictional question, above all others, should not be left in so much uncertainty. The facts required to be stated in the affidavits, to give the Court jurisdiction, must exist at the time the writ of attachment is issued. By reason of this, it is true, the plaintiff in attachment, in many cases, may be subjected to great inconvenience when he happens to reside at a distance from the clerk’s office from which the writ must issue. If this be an evil, it must be remedied by the Legislature, and not by the Court. It is for the Court to declare what the law is — not to make it. It must be positively stated, and not on information and belief only, that the defendant is indebted to the plaintiff, and the amount of such indebtedness, as nearly as may be,' over all legal set-offs. It must also appear that the debt is on contract, express or implied, or on judgment. All these facts must be sworn to positively; not necessarily in the words of the statute, but in language equivalent to that of the statute. The other facts to be stated in the affidavit need not be stated positively, for the statute itself discriminates between the facts to be sworn to positively, and those that need not be so sworn to. [105] Lockwood’s affidavit is clearly defective, because it states the indebtedness on information and belief only; and Hathaway’s affidavit is also defective, in not stating the non-residence of the defendant in the State for three months immediately preceding the time of making it. We do not stop to inquire whether both affidavits, if considered together, would make out all of the requirements of the statute, as Lockwood’s was sworn' to four days before the writ was issued, and Hathaway’s sixteen days before; [and the inquiry, for that reason, would not avail anything in the present case. Other points were made and discussed, on the argument, which it is unnecessary for us to decide, except, perhaps, one made by defendants; namely, That the judgment in the attachment suit is valid and conclusive as to bona fide purchasers until it is set aside, if not as between the parties to it. When the want of jurisdiction appears on the record of a court of general jurisdiction, the record is a nullity, and no rights can be acquired under it. To hold otherwise, would be giving to courts a right, by the forms of. law only, to take property from one individual, against his consent, and give it to another, by an ex parte proceeding not authorized by law. If it be said it is necessary to protect innocent purchasers, we reply, When one of two innocent persons must suffer, he who is most in fault must be the victim. Now, who is most in fault, — the defendant in the attachment suit, who knows nothing of the proceedings 'instituted against him (for he may in fact know nothing of them, or they may have been instituted in such a way that he is not bound to take notice of them), or he who purchases property under such proceedings, without looking into them to see whether they are authorized by law? It is a well settled principle, that one who purchases property without looking into the title-deed of his grantor, is, by his own negligence, chargeable with notice of any defect in the title, appearing on the face of such deed. It must be certified to the Circuit Court for the County [106] of Lapeer, as the opinion of this Court, that the writ of attachment, and all the proceedings had under it, are void and of no effect. The other Justices concurred.