Moline, Milburn & Stoddard Co. v. Curtis

Norval, J. This was an action brought in the- county court by plaintiff in error, aided by attachment, against the defendants in error. Prior to the trial a motion was made and — 521 — submitted to the county court to vacate the attachment, which was taken under advisement. Some time after judgment was rendered in favor of plaintiff in the main case, the defendants’ motion to discharge the attachment was denied by tiie county court; and to reverse said order defendants prosecuted a petition in error to the district court, where the decision of the county court sustaining the attachment was reversed, and the attachment dissolved. Plaintiff thereupon prosecuted a petition in error to this court. Three questions are presented for our determination, namely: 1. Where a motion to dissolve an attachment has been submitted to the court and'taken under advisement before trial and judgment in the action, can the court, after judgment has been rendered for the plaintiff, pass upon such motion ? 2. Did the county court err in permitting plaintiff to amend the original affidavit for attachment? 3. Has a county judge authority to sign and allow a bill of exceptions embodying affidavits used on the hearing of a motion to discharge an attachment? Plaintiff insists that the order of the county court sustaining the attachment was without authority of law and void, for the reason the same was not made until after final judgment in the action. The statute bearing upon the question, section 235 of the Code, declares that “ the defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment, as to the whole or a part of the property attached.” The most that can be claimed for this provision is that a motion to dissolve an attachment, to be available, must be made before final judgment has been rendered for the plaintiff in the action. Of course, a final judgment in favor of a defendant on the merits terminates the attachment proceedings, and vacates the attachment; but a final judgment in — 522 — favor of the plaintiff does not have the effect to sustain the attachment in all eases. The only reasonable construction of the section quoted is that the authority of the court to dissolve an attachment is limited to cases where a motion to discharge is filed before judgment. In other words, where such a motion is seasonably made and submitted to the court for its decision thereon, but through inadvertence or otherwise no ruling has been made before final judgment on the merits, the court has jurisdiction to rule upon the motion after such judgment. The question now before us was not raised or decided in Rudolf v. McDonald, 6 Neb., 163. In that case the motion to dissolve the attachment was not made until after final judgment, and it was held to be too late to be of any avail to the party making it. In the case before us, not only was the motion made before judgment, but a' hearing thereon was had, and the same taken under advisement. The failure of the court to rule thereon sooner is not chargeable to the defendants, but was the fault of the court alone. Under the circumstances it was the duty of the county judge to pass upon the motion after judgment had been entered for plaintiff in the action. Was the original affidavit on which the attachment was issued defective, ami did the county judge err in permitting plaintiff to amend the same? We answer in the negative. The original affidavit for attachment is as,follows: “State oe Nebraska, j Johnson County, j ‘ “The said plaintiff, the Moline, Milburn & Stoddard Company, makes oath that the claim in this action is for a recovery of a judgment for money in the sum of nine hundred and seventy-five dollars and and the said S. W. Croy, agent of the Milburn, Moline & Stoddard Company, also makes oath that said claim is just, and that the Mo-line, Milburn & Stoddard Company ought, as affiant believes, to recover thereon nine hundred and seventy-five dollars and -ffa. He also makes oath that the said Har — 523 — rison J. Curtis, Henry B. Curtis, and Mary E. Curtis, parties composing the firm of H. J. Curtis & Co., defendants, are about to convert their property, or a part thereof, into money, for the purpose of placing it beyond the reach of their creditors; that said Harrison J. Curtis, Henry B. Curtis, and Mary E. Curtis has property and rights in action which they conceal; that the said Harrison J. Curtis, Henry B. Curtis, and Mary E. Curtis have assigned, removed, and disposed of, and they are about to dispose of, their property, or a part thereof, with intent to defraud their creditors. S. W. Ckoy, “Agent for Moline, Milburn & Stoddard Company. “Subscribed in my presence and sworn to before me this 30th day of October, A. D. 1889. “John Wilson, “ County Judge.” Although the affidavit in the opening clause, relating to the nature of plaintiff’s claim, standing alone, purports to be that of the corporation, but when read in connection with what follows, and construing the paper as a whole, as we must, it sufficiently appears that S. W. Croy makes oath to each averment contained in the affidavit, and that he is plaintiff’s agent. A similar affidavit was sustained by this court in Whipple v. Hill, 36 Neb., 720. (See also Rudolf v. McDonald, 6 Neb., 163; Tessier v. Englehart, 18 Neb., 167, and Jansen v. Mundt, 20 Neb., 320.) The county court permitted plaintiff to amend the affidavit by inserting “ S. W. Croy, Secretary and Treasurer of” after the word “plaintiff” in the first line. The alleged defect was thereby cured. It is not error to permit an affidavit for attachment to be amended, even after a motion to dissolve has been filed. (Struthers v. McDowell, 5 Neb., 491; Rudolf v. McDonald, supra.) It appears that the motion to vacate the attachment was heard upon affidavits filed by the plaintiff, and on counter-affidavits submitted by the defendants. The county judge — 524 — signed a bill of exceptions embodying all these affidavits, and in the district court plaintiff moved to quash the bill, on the ground that there is no authority of law for signing a bill of exceptions in such cases. The motion was overruled, and this ruling is assigned as error. Before entering upon the consideration of this branch of the case, it should be stated that the cause was originally submitted to the supreme court commissioners for examination and report. Subsequently, an opinion prepared by Commissioner Irvine, covering every proposition presented by the record, which was concurred in by both the other commissioners, was submitted to the court, and the members thereof being divided in opinion upon one proposition, viz., the jurisdiction of the county judge to sign the bill of exceptions, I will give my views upon the subject. Commissioner Irvine, in discussing the question, says : “It is not doubted that an order sustaining an attachment is, at least after judgment in the action, a final order, which the defeated party may have reviewed on error. ( Walker v. Morse, 33 Neb., 650.) The question is not whether such an order may be reviewed, but whether the evidence used on the hearing of the motion in the county court may be preserved by a bill of exceptions for use in the error proceedings. “By chapter 20, Compiled Statutes, section 2, it is provided that the Code of Civil Procedure, relative to justices of the peace, shall, where no specific provision is made by that subdivision, apply to the proceedings in all civil actions prosecuted before such county court. This is the same section which confers upon the county court jurisdiction concurrent with the district court in all civil cases not exceeding one thousand dollars, except upon certain specific subjects. By section 11 of the same chapter it is provided that where the amount exceeds the jurisdiction of the justice of the peace, motions and demurrers shall be allowed, and the rules of practice concerning pleadings and. — 525 — processes in the district court shall be applicable, as far as may be, to pleadings in the county court. This section is a specific provision changing the general rule established by section 2 only in. regard to pleadings and processes. By section 16, orders for arrest and for attachment may issue from the county court, and where the demand exceeds the jurisdiction of a justice, the proceedings upon such orders shall be the same, as near as may be, as in the district court. This section makes the proceedings upon orders of attachment analogous to those of the district court, but has no reference to proceedings in the district court to review such orders. By section 26 it is provided that in civil actions either party may appeal or prosecute a petition in error in the same manner as provided by law in cases tried and determined by justices of the peace. Section 31 provides that the county judge shall keep a docket in which all of his proceedings in civil actions shall be entered, in like manner, as near as may be, as before justices of the peace, and that the provisions of the Code relating to justices’ dockets shall, as near as may be, apply to the docket of the county judge. This section should be construed in connection^with section 1086 of the Code, which provides specifically what shall be entered upon the dockets of justices. Among other things so required to be entered is the affidavit upon which an order of attachment is made, and also exceptions to the rulings of the justice on questions of law; but this latter provision, taken in connection with its context, shows that it applies to cases tried by a jury. “The result of the statutes so far is that the procedure in the' county court in all civil actions must conform with the procedure before justices of the peace, except in certain particulars specially provided by the statutes, and not embracing bills of exceptions; and that the record of a proceeding in the county court must contain the affidavit upon which an attachment is founded, but not the affidavits or proof used on the hearing of a motion to dissolve such at — 526 — tachment. Such affidavits cannot, therefore, be considered in error proceedings unless embodied in a bill of exceptions, and they cannot be embodied in a bill of exceptions unless the law authorizes such a bill. “In Taylor v. Tilden, 3 Neb., 339, Judge Gantt reviews the statutes upon the subject, and holds that the provision allowing justices of the peace to sign bills of exceptions embodying questions of law arising during a trial by jury is exclusive, and that there is no authority for a bill of exceptions in other cases. He says that ‘ the petition in error brings up to the appellate court a judgment or decision of the inferior court together with a transcript of the record, and bills of exceptions constitute no part of such record unless made so by some statutory provision.’ This ease was reaffirmed in an opinion by Judge Lake in Kellogg v. Huntington, 4 Neb., 96, and the same rule of construction was followed in Nickerson v. Needles, 32 Neb., 230, and in Chicago, B. & Q. R. Co. v. Goracke, 32 Neb., 90. In the latter case it was held that the authority for a bill of exceptions was so restricted that such bill could be made to embody only the rulings of the justice upon questions of law arising during a trial by jury, and did not permit the preservation of all the evidence in order to permit a review upon the ground ‘that the verdict was not sustained by the evidence. “The first authority for a bill of exceptions is found in-the statute of 13 Edward I, chapter 31. The purpose of that statute, as well as all other statutes upon the subject, was to provide a method for bringing into the record what otherwise would not appear there. These statutes have received a uniformly strict construction, as may be seen from an examination of the cases cited in 1 Troubat & Haly, Practice, 570 et seq. They have never been extended beyond their letter. It cannot be argued that the authority to have the case reviewed on error implies an authority to have a bill of exceptions settled, because cases were re — 527 — viewed on error long before such a thing as a bill of exceptions was known; and cases are now reviewed in this court, and in others, where error appears upon the record, without the aid of a bill of exceptions. “It is also urged that the right to a bill of exceptions should be implied frcm sections 586 and 587 of the Code. Section 586 requires the plaintiff in error to file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed. Section 587 provides that county judges, justices of the peace, and others, upon request and upon being paid the lawful fees therefor, shall furnish an authenticated transcript of their proceedings, including the judgment or final order. The term “transcript” implies that the document referred to shall be a copy of some original document, and the language, taken in connection with chapter 20, section 26, above referred to, and other sections relating to the filing of transcripts in the district court, plainly refers to a transcript of the entries required to be made upon the docket, and does not require a transcript of all papers filed or of all evidence offered in the case. We think, therefore, that there is no' authority of law for the county judge to sign a bill of exceptions embodying affidavits used as evidence on motions to dissolve an attachment. We regard the Nebraska cases cited as decisive of this question. Even were we convinced that the earlier cases were wrong, we would hesitate to overrule so long a line of authority, especially upon a question of practice where it is perhaps more important that the law should be stable and certain than that it should be right. It is probable that the legislature intended to make findings of fact in the court of first instance decisive upon such matters, and that that policy accounts for the omission. At any rate it is the legislature, and not the courts, which should supply the omission. In the long line of decisions directly or indirectly affecting this question there are but two cases which cast any doubt upon the correctness of the conclu — 528 — sions we have reached. One is Walker v. Morse, already-cited, where this court held that such a bill of exceptions should not have been quashed in the district court because the motion to quash the same was not sufficiently specific. It is plain from an inspection of that case that the motion was urged upon some technical ground not expressed in the ' motion, and that the attention of the court was not challenged to the question now before us. The other is Osborne v. Canfield, 33 Neb., 330, where the distinction between the right to review a judgment on error and the right to a bill of exceptions was evidently overlooked. We cannot regard those cases as overruling all the others upon the subject. The district court erred in overruling the motion to quash.” I fully concur in the conclusion reached by Commissioner Irvine. His argument in support of the proposition that a county judge is without authority to settle a bill of exceptions embodying the evidence adduced on the hearing of a motion to vacate an attachment is, to my mind, unanswerable. In what I shall say upon the subject I shall refrain from going over the ground covered by that opinion. The chief justice says, in substance, that the decisions of this court in Taylor v. Tilden, 3 Neb., 339, and Kellogg v. Huntington, 4 Neb., 96, holding that a bill of exceptions cannot be taken from the ruling of a justice, except in cases tried to a jury, have been adhered to, and are the law of this state, but these “ cases rest, to some extent, upon the ground that an adequate remedy is given by appeal.” An examination of the opinions in the cases mentioned fails to disclose that either was predicated upon the fact that there existed a remedy by appeal. On the contrary they are placed squarely upon the ground that there is no statute in this state authorizing a county judge or justice of the peace to allow a bill of exceptions in a case, unless such cause is tried by a jury. The right to a bill of exceptions is purely statutory, and where it is not authorized by law, a party is — 529 — not entitled to one. Gantt, J., in the first case says: “ The statute does not give the right of a bill of exceptions to the ruling of the probate judge, or justice of the peace, upon questions of law arising during the trial before them, in cases not tried before a jury, and hence, such bill of exceptions cannot be considered in an appellate court, because it is an act without authority of law, and a nullity.” That action, like this, was commenced in the county court, and the decision ought to be decisive of the question under consideration. The same doctrine has been held and applied in Kellogg v. Huntington, supra; Rudolf v. Winters, 7 Neb., 125; Burlington & M. R. Co. v. Dick, 7 Neb., 244, besides the two cases in 32 Neb., cited by Commissioner Irvine. The supreme court of Ohio, in Baer v. Otto, 34 O. St., 11, has placed the same construction upon the statute of that state. In that case the question arose whether a justice of the peace has any power to sign a bill of exceptions containing the evidence taken before him on the hearing of a motion to discharge an attachment, and the court in the opinion say: “ In the case now before us, it might be said that there is no such preponderance of evidence against the order refusing to discharge the attachment as would justify its reversal. “But, in order to settle the practice in such cases, we now decide that there is no provision made by legislation, as it now stands, for preserving the evidence offered on such motion, or for reviewing the decision of the justice, upon the ground that such order, either in granting or refusing the motion, is contrary to the evidence. “ The statute prescribing the contents of a justice’s docket (section 203 of the Justices’ Code; S. & C., 804, 805) does not require any evidence to be recorded. And the only statute which authorizes a bill of exceptions to be signed by a justice is the act of February 11, 1869 (66 Ohio L., 7), and the sole object of the bill of exceptions provided — 530 — for in this act, is to authorize a review of the questions of law arising during a trial of the cause before the justice.”' After the decision in Baer v. Otto, supra, the legislature of Ohio passed a law authorizing a bill of exceptions where an order discharging or refusing to discharge an order of attachment is made. (Revised Statutes of Ohio, sec. 6524.) There is no room for doubt that it is the settled law of this state that a justice of the peace is not authorized to sign a bill of exceptions preserving the testimony on which he acted in sustaining or overruling a motion to dissolve an attachment; and the above opinion of the commissioner satisfies the writer that the rule is the same in such cases in the county courts. Such has been the scope of the decisions in cases originating in county courts, and that too where the amount exceeded the jurisdiction of a justice of the peace. (See Rudolf v. Winters, supra, and Nickerson v. Needles, supra.) Had this suit originated in the district court, and the motion to discharge the attachment been there made and the same had been either sustained' or denied, the defeated party, it is true, would have been entitled to have the evidence taken on the hearing incorporated in a bill of exceptions. The power of the district court to sign bills of exceptions is not limited to cases tried to a jury; but the statute confers ample authority upon that court to sign a true bill in all cases, whether tried to a court or to a jury; and it is no argument to say that because the attaching creditor, where the attachment is discharged by the district court, may have the evidénce preserved by a bill of exceptions, another party in a similar case, upon a like ruling made by the county court, is likewise entitled to a bill of exceptions. The authority of the two courts to settle and allow bills of exceptions rests upon entirely dissimilar statutory provisions. Attention has been called to section 236e of the Code. We cannot yield assent to the proposition that said section, — 531 — either in express terms or impliedly, confers the power for settling a bill of exceptions in any case, or the right to review the order of the court discharging an attachment. That the section was not passed by the legislature for any such'purpose is clearly manifest from a reading of the language of the provisions, as well as the purpose of the act expressed in the title. The act is entitled “An act to provide for the retention of attached property pending a review on. error of an order discharging the attachment.” The object named in the title is carried into the body of the statute. As was said by the present chief justice in his opinion in Adams County Bank v. Morgan, 26 Neb., 149, in considering section 236e of the Code, “ this section applies alone to the retention of the lien of the attachment; that is, if the attaching creditor desires to retain his attachment lien upon the property attached until the ruling on the motion to discharge can be reviewed in the appellate court, he must, within such time as the court shall fix, not exceeding twenty days, give an undertaking to the adverse party, with approved sureties, in double the appraised value of the property, conditioned,” etc. It cannot be doubted that the sole purpose the legislature had in adopting the section under consideration was to provide for preserving the lien of the attachment pending the review of the order dissolving the attachment in the appellate court. The act confers no authority, nor does it attempt so to do, to prosecute error from the ruling of the court in sustaining or vacating an order of attachment. Such power already existed at the time the section became a law. The discharging of an attachment is a final order, and is reviewable under sections 581 and 582 of the Code. (Turpin v. Coates, 12 Neb., 321.) Even though it should he held that section 236e confers the right to review the ruling on a motion discharging an attachment and to the evidence upon which the decision is based, the section has no application to the case at bar, since the county court did not dissolve the attachment, but sus — 532 — tained the writ. By no process of reasoning can it be held that the section authorizes a county judge to sign a bill of exceptions where the attachment is upheld. The section applies alone to cases in which the attachment is discharged. Mention has been made of the writ of certiorari, and it is claimed that under such a writ a party at common law ' was entitled to bring up for review both the evidence upon .which the inferior tribunal acted and the question of jurisdiction. We concede that section 599 of the Code confers upon courts the same power to compel the proceedings of an inferior tribunal to be brought up for review as existed at common law, and that by section 901 of the Code the common law remedies are continued in force in this state, where the Code has failed to provide a remedy. But we are unwilling to admit that as a general rule a court upon a common law writ of certiorari will examine the evidence for the purpose of determining whether it sustains the judgment sought to be reviewed. It is my understanding that the office -of a common law certiorari is only to bring up for review the question of jurisdiction or power, and errors on the face of the record, and that the reviewing court will not inquire whether the decision of the inferior tribunal was right^upon the merits. (Corrie v. Corrie, 42 Mich., 509; Hyslop v. Finch, 99 Ill., 171; Rawson v. McElvaine, 49 Mich., 194; Central P. R. Co. v. Placer County, 43 Cal., 365; Ex parte Nightingale, 11 Pick. [Mass.], 168; McAllilley v. Horton, 75 Ala., 491; Rayner v. State, 52 Md., 368; Lapan v. Commissioners of Cumberland County, 65 Me., 160; De Rochebrune v. Southerner, 12 Minn.,. 78; Conover v. Davis, N. J. Law, 112; In re Kensington & Oxford Turnpike Co., 97 Pa. St., 260.) There is considerable conflict in the authorities upon the question, but we think the rule just stated is the scope of certiorari as applied to judgments of justice courts, and other similar tribunals. (Frederick v. Clark, 5 Wis., 191; Baizer v. Lasch, 28 Wis., 268; Smith — 533 — v. Bahr, 62 Wis., 244; Owens v. State, 27 Wis., 456; State v. Huck, 29 Wis., 202; Paulsen v. Ingersoll, 62 Wis., 312; Callon v. Sternberg, 38 Wis., 539; Milwaukee Iron Co. v. Schubel, 29 Wis., 444; Driscoll v. Smith, 17 N. W. Rep. [Wis.], 876; Tiedt v. Carstensen, 61 Ia., 334; Healy v. Kneeland, 48 Wis., 497; Schall v. Bly, 43 Mich., 401; Carver v. Chapell, 37 N. W. Rep. [Mich.], 879.) In State v. Huck, supra, a justice of the peace, under a writ of certiorari, certified up all the evidence, as well as the record, to the circuit court, where the judgment of the justice was reversed as being against the evidence. On error to the supreme court the judgment of the circuit court was reversed, and that of the justice affirmed; the court holding that upon certiorari issued to a justice of the peace, only jurisdictional errors and defects disclosed by the record would be examined. In Carver v. Chapell, supra, plaintiff sued out an attachment. The writ was dissolved on motion of the defendant. The supreme court of Michigan held, on review of the case, that on certiorari it would not review the facts or pass upon the weight of the testimony upon which the lower court based its ruling. In Milwaukee Iron Co. v. Schubel, supra, Cole, J., in speaking of certiorari, says: “In this state the common law writ has almost invariably been brought to review the proceedings and judgments of justices of the peace; and this court has, with much uniformity, declined to consider upon such writ any but jurisdictional questions, or such questions of law as might arise upon the docket entries of the justice. The court has refused to try the merits of the action by a common law writ, or to examine any alleged error of the justice in his rulings on the trial, orto consider any objection which involved an inquiry into the evidence. There was no way provided by which such decisions and rulings became a matter of record; and, besides, an adequate remedy was afforded for a review of these judicial — 534 — acts by means of the statutory writ of certiorari or by appeal.” It is perfectly plain that certiorari will not lie where the statute affords a remedy by error or appeal. The decision of a justice of the peace, or county court, in sustaining or dissolving an attachment can be reviewed by proceedings in error. True, the ruling of said courts on a motion to discharge an attachment cannot be reviewed on the ground that the decision is against the weight of the evidence; but that is not the fault of the court, but of the law, in failing to provide for preserving the evidence by a bill of exceptions. Osborne v. Canfield, 33 Neb., 330, is overruled. In the ease we are considering, the district court reversed the decision of the county court upon the ground that it was contrary to the evidence. As the bill of exceptions was without authority of law, the district court erred in not quashing the same. It follows that the judgment of the court below should be reversed, and that of the county-court affirmed. Reversed.