Edgarton v. Hinchman

Campbell J.: An attachment having been levied upon the real estate of the defendant Hinchman, he moved before the circuit court commissioner to dissolve it. This motion was resisted upon several grounds, all falling within two1 heads, [354] which are, 1st: That a motion will not lie under the statute to dissolve an attachment on lands; and 2d: That the circuit court commissioner had no power, under the Constitution, to dissolve an attachment. The statute of 1851 (2 Comp. L. 1275) authorizes “any defendant, whose property may be attached,” to apply for a dissolution. This language is very broad, and, unless some good reason appears to the contrary, can not readily be satisfied without embracing any property which can be levied upon by attachment. The writ issues upon an ex parte affidavit [of fraud or non - residence, and upon these peculiar grounds secures) a lien upon the debtor’s property. If the debtor does not reside abroad, and is guilty of no fraud, there is no propriety in allowing his property to be tied up on a showing that is not substantiated on the motion to dissolve. That it can not easily harm him is no answer, for unless the statutory grounds exist, the creditor ought uot to obtain any advantage which an ordinary suit would not give him. But an attachment may operate as a cloud upon title, and thus work a direct and tangible injury to the debtor. This objection is not well taken. But it is claimed ' the statute is unconstitutional. This law was passed after the Constitution took effect, and if the powers of the commissioner in this respect exceed those which may be properly exercised by a circuit judge at chambers, the objection will be valid. But, by the same act, the circuit judge is authorized to act as well as the commissioner. The interference is entirely interlocutory, and does not touch the issue in the attachment suit. It is merely to inquire into .the truth of matters upon which the plaintiff has, by an ex parte affidavit, been enabled to obtain a statutory advantage. If the law required a plaintiff, in order to sue out an attachment, to satisfy a com_ missioner beforehand that good cause existed for issuing he writ, and the defendant had an opportunity to contest [355] it, the proceeding would be the same in. principle as the present one. But viewed in that light, it bears a very Strong resemblance to a preliminary examination to determine upon the commitment of a person accused. The main and only real difference is, that the jurisdiction as now maintained, is a step in judicial proceedings already commenced in a legal action, and therefore partakes of their character as an interlocutory motion. But it does not differ in character from any of the ordinary chamber powers of judges. And, inasmuch as the enactment of the statute of 1851 merely imposes a new condition upon a statutory privilege, unknown to ordinary actions, to prevent the abuse which might attend on the unchecked action of parties swearing on mere belief to secure this privilege, it might, perhaps, be safely vindicated as part of a special statutory remedy, even if objections would prevail against similar powers in ordinary cases. The powers of the judges and commissioners under this statute are not, in their nature, more extensive than ordinary chamber powers, and are similar in their character to those. I do not perceive wherein the act violates the Constitution. I think the decision should be affirmed. The other Justices concurred.