Newell v. Whitwell

Hunt, J. Upon the hearing on the motion to dissolve the attachment the court heard no testimony other than the affidavits contained in the statement, hereinbefore recapitulated. We may concede that upon disputed questions of fact, where there is a substantial conflict between the statements made by those who seek to dissolve the attachment and those who try to retain such a lien, the court will not disturb the decision of the district judge, unless it is clearly against the.preponderance of evidence; yet we are irresistably led to a conclusion in the case before us, directly opposite to that entertained by the district court. It must be remembered that the case is not one where the witnesses testified in person, and where the manner in which they gave their evidence might have materially aided the trial judge in weighing their credibility. For this reason the case must be decided by this court precisely upon what was before the district court; that is, upon record evidence, and nothing else. (Robinson v. Melvin, 14 Kan. 484; Landsman v. Thompson, 9 Mont. 182.) We regard the statement made by the defendants to the effect that plaintiffs were to extend the defendants a credit of $5,000, and that all sums in excess of $5,000 were alone to be collected, so long as defendants continued to do business with plaintiffs, as wholly unreasonable on its face. It is incredible that such an unusual agreement, which was a practical loan of $5,000, never to be repaid if respondents traded with appel — 255 — lants, could have been entered into. But, if our conclusion m relation to this agreement, being of itself improbable, is erroneous, to satisfy us that we are right we have only to refer to the correspondence between plaintiffs and defendants, wherein the defendants, long prior to the time when their credit even approximated the sum of $5,000, were asking leniency at appellants’ hands in collections, and making remittances to the plaintiffs, thanking them for past favors, and promising to clear their accounts up. In one letter, quoted in part in the statement of the case, defendants ask plaintiffs not to ‘ ‘crowd them. ’ ’ It naturally suggests itself, why should the defendants ask the plaintiffs not to crowd them when they only owed plaintiffs about $3,000, and under their agreement, as contended for, there could be no indebtedness collected until a maximum credit of $5,000 had been incurred % The statements of several witnesses for the plaintiffs all go to show that the credits extended were for less than four months, with but one exception; and that the moneys were due for each and every invoice, prior to the institution of this action, except for the amount of those invoices which only' became due by virtue of the happening of the contingency provided for in the credit memoranda. In relation to the goods sold to the defendants for the $950.55 due on such memoranda of credit, we think the weight of testimony is clearly on the side of the plaintiffs. It appears by the affidavits of Johnson and McLean and others that the terms of credit upon goods sold on invoices, to the amount of $4,016.40, had expired, and that without any credit condition that sum would be due; but that in all the invoices of goods sold by plaintiffs to defendants and sued for in this action, the conditional credit was printed upon the bills, and made part of the contract of sale, and that the sum total of the amount due upon goods sold under the conditional credit agreement exceeded the sum total of the amount sued for. It further appears that certain goods were sold for cash in in the course of transactions between the parties, and that of — 256 — thirty-seven invoices sent by plaintiffs to defendants in the course of the dealings, all but three or four had the credit memoranda appearing upon the face of the invoice. We can but think that the argument of plaintiffs is reasonable and fair, when they say that the only invoices which did not contain the memoranda of credit clause were cash transactions between the parties, and are therefore immaterial in consideiing this motion in the suit. Such a view conforms with the several statements made by plaintiff 's witnesses, which statements are not successfully controverted by the defendants. The statement by the defendants that their attention had not been called to the credit clause is entitled to very little or no weight.. We cannot believe that a mercantile firm would be so careless in reading its invoices as to overlook such an unusual and important condition on so many invoices of goods sent them. There is an attempt on the part of the defendants to deny that the claims apparently not due did not become so by virtue of any suits against defendants; but this portion of the affidavit of defendant Whitwell is evasive, and evidently sham, because he does not contradict what is averred to be shown by the records, namely, that Griggs, Cooper & Co., and others, had instituted suits against his firm before plaintiffs sued. TTis. statement that these plaintiffs and other creditors secretly agreed to commence their actions in the order in which the same were commenced, and share pro Tata in the collections of their claims, all of said creditors well knowing that their said claims were in a large part not due, is in itself a contradiction of the averment that no suits had been instituted. A careful reading of the aforesaid affidavit of defendant Whitwell, filed August 29, 1893, will demonstrate the falsity of its contents, provided, of course, summons had been served upon the defendants, of whom he was one, in the proceedings to which he himself refers in a part of his affidavit on the motion to dissolve. The respondents argue that the plaintiffs’ counsel in open court admitted that $666.84 of the account sued on was not due, and, although opportunity was offered the plaintiffs to — 257 — amend, they refused to do so. We do not construe the attitude that the plaintiffs assumed, which is exactly set forth in the statement of facts, to be an admission of the fact that $666.84 of the debt sued for was not due, inasmuch as counsel expressly restricted their admissions to the statement that that amount was due only by virtue of the credit memoranda clause upon the invoices. Plaintiffs’ counsel did admit that the invoices amounting to $666.84 did not have the credit condition upon them; but further stated that there were 37 invoices in which the condition of credit did appear, and that, notwithstanding the fact that three or four invoices, amounting to $666.84, did not have that condition, yet there were enough invoices upon which it did appear to make the entire debt sued for due. Under such a contention made by the plaintiffs, and not directly and specifically controverted by any affidavits of the defendants, we think that it was error on the part of the district judge to put the plaintiffs upon an election requiring them to either amend their affidavit in attachment, or submit to a dissolution thereof. Our conclusion is that, upon all the facts as they appeared before the learned judge of the district court, the affidavits of respondents presented no substantial conflict with the statements of the plaintiffs, and contained many statements so highly improbable as to deny to them claims to belief. (Landsman v. Thompson, supra.) Respondents next argue that the affidavit upon which the attachment in this case was issued is fatally defective, upon the ground that part of the claim was not due; but this argument is based upon the hypothesis that the ruling of the court was correct that $666.84 of the amount sued for was not yet due. Our opinion upon the merits renders it unnecessary to discuss the question of whether or not an attachment is void where the affidavit states that a greater sum is due than is subsequently determined to be due. We think, however, that under the weight of authority, where a person has, in good faith, made a mistake in the amount of the indebtedness, to secure which the attachment was issued, it is within the power — 258 — of the court to permit an amendment to be made, and judgment to be entered in the proper sum, and that the plaintiff should not lose his whole lien because of an inadvertent error. The procuring of an attachment is a proceeding within the spirit of the Code, and, if such proceeding is defective, the same may be amended in the furtherance of justice, like any other proceeding, under section 116. (Pierse v. Mills, 5 Mont. 550; Magee v. Fogerty, 6 Mont. 237; Josephi v. Clothing Co., 13 Mont. 195; Peiffer v. Wheeler, 76 Hun. 280, 27 N. Y. Supp. 771; Insurance Co. v. Dimmick (Sup.) 22 N. Y. Supp. 1096; Maxw. Code Pl. 585; Struthers v. McDowell, 5 Neb. 491.) The legislature has not only failed to disapprove of these repeated judicial interpretations of the attachment laws, but has expressly sanctioned them by the adoption of a provision in the new Code of Civil Procedure, passed in 1895, permitting amendments to the affidavit in attachment. (§ 916, Code of Civil Procedure.) Finally, we are asked to declare the affidavit in attachment in this case wholly insufficient, because, under section 181, Code of Civil Procedure, the affidavit must show the existence of certain facts, — among others, that the debt sued on is upon contract. The amended affidavit filed pursues the usual course of simply stating the affiant’s conclusion, namely, that defendants are indebted to plaintiffs in the sum of §4,966.95, with 10 per cent, per annum interest thereon from the 28th day of August, 1893, upon an express and implied contract for the payment of money, which is now due from defendants to plaintiffs. But we think that such an affidavit is sufficient. Under our statutes the clerk must issue the writ of attachment when the affidavit required by law has been filed, and the necessary undertaking has been given. It certainly was not contemplated by the statute that the clerk should exercise more than a ministerial duty in issuing a writ of attachment; and, where the ultimate facts are set forth as fully as they were in this case, the statute has been substantially complied — 259 — with. (Wheeler v. Farmer, 38 Cal. 203; Bank v. Boyd, 86 Cal. 386; Gutman v. Iron Co., 5 W. Va. 22; Drake on Attachment, § 98; 1 Wade on Attachment, pp. 120, 131; Weaver v. Hayward, 41 Cal. 118; Crawford v. Roberts, 8 Or. 324.) Under a statute substantially like ours, requiring an affidavit showing the nature of the plaintiff’s claim, it has been held reference may be had to the complaint where the statement is not as full in the affidavit as may be desired. (Hart v. Barnes, 24 Neb. 782, 40 N. W. 322; Drake on Attachment, § 95; Waples on Attachment, page 87.) We might rest the decision of this case upon the views hereinbefore expressed. An important question of practice, however, was ably presented to the court as the principal one involved, and, in view of the fact that we have given to it a very careful examination, it is proper that we express what seems to us to be the better view of the point raised. By the affidavits used on the motion to dissolve, the real issue between the parties was whether the debt sued on by the plaintiffs was due wholly or in part. To determine this issue involved a consideration of the entire merits of the controversy between, the parties. We are not prepared to believe that such a determination can be had on a motion to dissolve an attachment. By section 200 of the Code of Civil Procedure the only ground upon which an attachment may be discharged is that the writ was improperly issued. If this statute were standing by itself, we doubt whether any inquiry could be had beyond what might be apparent by the records in the case before the court; but the law evidently contemplates a further examination, for, by sections 201 and 202, the motion to discharge an attachment on the ground that the writ was improperly issued may be made upon affidavits, as well as upon the papers themselves; and the plaintiff may oppose these affidavits by counter affidavits, or other evidence, in addition to those on which the order of attachment was made. We therefore think that an attachment can be dissolved for irregularities or imperfections in its issuance, not only apparent upon the writing and the printing contained in the papers, but upon other — 260 — grounds, wherein it is made to appear that the issuance of the writ has been improper or irregular. But how far can the investigation under the motion go, and how restrictive or how liberal are the terms of the statute ? If, for instances, the notary taking the oath of the plaintiff to the affidavit was not in fact a notary; if on the same demand a second writ has been issued in the same county; or where the bond was not signed by those purporting to have signed it; or where the party making oath to the affidavit as the agent of the plaintiff was not in fact his agent; or perhaps in other instances, where the writ is founded upon facts not the same ones constituting the cause of action, and where a decision upon such facts is not a decision upon the identical issue to be tried to a jury, and upon which plaintiff’s right of action solely depends, — we think that a motion to dissolve the attachment upon the ground that it was improperly issued is contemplated by the statute, and in such instances affidavits may be resorted to to properly place before the court the information necessary for it to have in order to base a finding upon that the writ has been improperly issued, and to make an order of discharge. But we do not think that it is within the terms of the statute, or within the scope of an inquiry into whether there has been an improper issuance of the writ, for the district court to try the merits of the main action in a motion to dissolve the attachment. If it were, the court, by the expression of an opinion upon disputed questions of fact, could, on a motion to dissolve to-day, render a judgment involving the merits of the suit, which the law says a jury alone can do to-morrow, if either party elects to have a jury. It is urged that an attachment proceeding is but ancillary to the main action, and that a trial'upon that issue does not affect the merits of the suit. This is true, but it does not dispose of the anomalous position to which the defendants’ reasoning carries us, if the judge may try the facts and destroy the entire value of the plaintiff’s judgment by dissolving the attachment, thus declaring it improvidently issued; while a jury, upon precisely the same testimony, and upon the identical issue, — 261 — might decide contrary to the judge, and award the plaintiff a verdict for all he asks, upon the ground that the debt is due. Or, to carry the illustration further, after the defendants have had the motion to dissolve sustained because the debt was not due, they might default as to the action, and thus confess it was due. Under such conditions what would plaintiffs position be ? By the previous ruling of the judge on the merits his debt was not due, but by the default, or if tried by the jury on the merits, his debt was due. Between this legal game of battle-door and shuttlecock, he would have a judgment good only in form, without any substance wherewith to satisfy it. It may be that cases will arise where it is difficult for the trial court or judge to say whether the facts, when disputed on a motion to dissolve, are the same ones upon which the cause of action depends. But, notwithstanding such occasional perplexities, we believe that our construction of the statutes is the correct one, and that far less injurious consequences will flow from pursuing the rule laid down herein than would from holding that the statutes permit the directly disputed issues of the main suit to be adjudicated by the trial court upon ex parte affidavits, and thus too often destroy the object of the suit itself, — the collection of a debt. This question has been considered by the supreme court of New York a number of times within the past few years. In Lowenstein v. Salinger, 17 N. Y. Supp. 70, it was held that the court would not ordinarily, on motion to vacate an attachment, try questions regarding the cause of action which should properly be left to be determined on a trial. This ruling is approved of by the same court in Brown v. Wigton, 18 N. Y. Supp. 490, where the court refused to dissolve an attachment because the affidavits raised the merits of the controversy. In Stearns Paper Co. v. Johnson, 18 N. Y. Supp. 490, it was sought to vacate an attachment on the ground, according to the affidavit of the defendant, that there was no such debt due as was claimed in the complaint. It was held that was a question which could only be disposed of upon the trial, and could not be considered — 262 — by the court, as the facts were not undisputed, nor were the legal conclusions certain. In Johnson v. Harwood D. & T. Co., 29 N. Y. Supp. 797, on an appeal from an order denying the motion of appellant, a junior attaching creditor, to vacate the plaintiff’s action, the supreme court adhered to the principle laid down in the decisions just cited, and refused to dissolve the attachment on the ground that the court would not, on such an application, pass upon the merits of the action. The last case which we have been able to discover is that of Kirby v Colwell, reported in 81 Hun, 385, 30 N. Y. Supp. 880, and decided in October, 1894. A motion was there made to vacate an attachment, solely upon the ground that plaintiff had no cause of action against the defendants, and the affidavits presented in support of the motion denied the contract pleaded, or the rendition of the services, which were the basis of the plaintiff’s complaint. The trial judge vacated the attachment, but the supreme court held that when, upon a motion of this character, the only question presented relates to the existence of plaintiff’s alleged cause of action, and is one of fact, and not of law, it should be left for determination at the trial, and not be decided upon affidavits. We believe the New York rule to be the correct one, subject to the qualifications hereinbefore discussed, and generally to the further qualification that, “where the facts are undisputed, and the legal conclusions certain, it would be oppressive to hold an attachment which is clearly without foundation. ’ ’ '(Lowenstein, v. Salinger, supra.) The case of Elling v. Kirkpatrick, 6 Mont. 119, was clearly within the New York rule. The facts therein upon which the motion to dissolve the attachment was made were written legal instruments. They were such as would lead up to certain legal conclusions, and addressed themselves entirely to the consideration of the court, and not a jury. See, also, Herrmann v. Amedee, 30 La. Ann. 393, where it was held that the defendant might put in issue, and require to be passed upon, the allegations of the plaintiff’s affidavit, on which the writ itself is is — 263 — sued, without reference to the merits; but where the petition shows a cause of action, although the allegations are not true in fact, or the defendant has defenses on which the demand of plaintiff may be be defeated on the merits, neither the truth of the allegations nor the defense on the merits can be inquired into on the rule to show cause. The general doctrine is also recognized in Carnahan v. Gustine (Okl.) 37 Pac. 594, although in that case the court follow the Kansas cases, and Rosenberg v. Burnstein (Minn.) 61 N. W. 684; Miller v. Chandler, 29 La. Ann. 88; Reiss v. Brady, 2 Cal. 132; Drake on Attachment, § 418. An analogy, too, may be found in a hearing on an order of arrest against a debtor. (Griswold y. Sweet, 49 How. Prac. 171.) Several cases cited by the respondents seem to hold that there may be a trial of the merits on the motion to dissolve. The early Kansas cases, Robinson v. Melvin, 14 Kan. 484 and Burdrem v. Denn, 25 Kan. 430, upon critical examination, scarcely go as far, we think, as the respondents would have the court go in this case. If they do, we hold that they do not state the law correctly, as applied to our statute. But in considering the Kansas cases it is highly important to note that under paragraph 4323, Gen. St. Kan., a defendant may, at any time before judgment, move to discharge an attachment as to the whole or part of the property attached, without statutory limitations, such as Montana has, to the grounds upon which the motion may be based. The statutes of Nebraska (§ 4745, Consol. St. Neb.) also permit a motion to discharge a writ of attachment on exactly the same grounds as the Kansas statutes, with no express limitations, and yet the supreme court of Nebraska held, in Olmstead v. Rivers (1879) 9 Neb. 234, 2 N. W. 366, that, where a motion was made to discharge an attachment on the ground that the debt was not due at the commencement of the suit, the truth or falsity of the statement ‘ ‘ cannot be inquired into on a motion to dissolve the attachment. That question can be settled only on a trial of the issues under the pleadings. ’ ’ The late Kansas cases proceed upon the doctrine of stare decisis. — 264 — In Pennsylvania and several other states the statutes confer the power on the court or jury expressly to hear evidence, or determine the truth of the allegations contained in the affidavit upon which the writ is issued, and to dissolve or continue the liens of such attachments, according as he or they shall find the allegations of such affidavit sustained or otherwise. (Walls v. Campbell (Pa. Sup.) 17 Atl. 422; Woods v. Tanquary (Colo. App.) 34 Pac. 737; chapter 6, Code Colo. 1887.) The case of Avery v. Zander, 77 Tex. 207, 13 S. W. 971, relied on by respondents, held that where the complaint, on its face, showed that certain of the claims were not due, and the affidavit alleged that the defendant was indebted to the plaintiff in the aggregate amount sued for, without specifying what part of the claims were due, and what part were not due, an attachment was properly dissolved. But the court overlooked an important point in the case. After the original suit was instituted, by leave of court the plaintiff filed an amended petition, precisely as was done in the case at bar, describing with greater particularity the claim sued on, and showing what part was due and what part was not due. There is nowhere throughout the opinion any allusion to this amended complaint, and the ruling of the lower court was sustained wholly upon the ground that the original complaint and affidavit showed part of the claim was not due. To conclude, it may be that our views upon the proper limitations to be put upon an inquiry whether an attachment has or has not been improperly issued will, upon a positive decision of the question be somewhat modified. But we are inclined to think that if such modification ever be had, it will be in restricting the scope of the inquiry upon motion to dissolve before trial, rather than in extending it. The order of the district court dissolving the attachment is reversed. Reversed. Pemberton, C. J., and De .Witt, J., concur.