Guckenheimer v. Libbey

The opinion of the court was delivered by Mr. Justice McGowan.1 In the month of October, 1893, — 166 — attachments in the above seven cases were issued by the clerk of the court of Beaufort County against the property of the defendants, Libbey Brothers (C. F. Libbey and B. F. Libbey), who were then merchants doing business at Beaufort. The grounds for issuing the attachments were the same in all the cases — removal from the State and disposition or intended disposal of their property, with the intent to defraud their creditor’s. (See the affidavits of W. EL Townsend, Esq., A. S. Guckenheimer, EE. W. Tilton, C. F. Danner, Judson Lawton, and R. R. Legare and others, in the Brief.) On October 19 thereafter, W. J. Verdier, Esq., as attorney for the defendants, gave notice of a motion to “discharge, vacate, and set aside said attachments, as having been improvidently and irregularly issued.” The defendants submitted no counter-affidavits, and when the matter came up before his honor, Judge Izlar, at chambers, the objection was made to the hearing by him upon the ground that the notice to vacate did not specify any particular irregularity. His honor refused to hear the motion separately, but said that he would hear argument on the objection and the motion to discharge together, and the héaring proceeded. The judge, after hearing argument, passed an order discharging all the attachments, without making any specific findings of fact or assigning any reasons therefor, as follows: “It is ordered, that the attachments issued in the above entitled actions on October 7 and 9, 1893, be and the same are hereby vacated and discharged,” &c. From this order the respective plaintiffs appeal to this court upon the following grounds: “I. That his honor erred in not refusing to hear the motion to vacate, for the reason that the notice specified no particular irregularity. II. That his honor erred in granting the motion to vacate, and in discharging said attachments, for the reason that the affidavits and complaint in each one were sufficient for the issuing of the attachments.” 1 As to the first ground of appeal. It seems that paragraph 3 of Rule 57 of the Circuit Court does declare: “When the motion is for irregularity, the notice or motion must specify the irregularity complained of.”' It would seem the most natural and better practice, that one called upon to defend — 167 — the regularity of a legal proceeding should, at least, be informed as to the particular in which the irregularity is charged. It appears that in the State of New York this rule is applied to motions to set aside attachments. See Barker v. Cook, 25 How. Pr., 190. But it does not appear that, in this case, the judge ruled upon the subject, and, therefore, it is not properly before this court for adjudication, and we reserve our judgment. 2 Then as to the second ground of appeal. As the defendants offered no counter-affidavits, there can be no question as to whether the attachments were improvidently issued. There is no conflict of testimony, and the statements of the affidavits filed by the plaintiffs to obtain the attachments may be taken as uncontradicted, and the matter thus reduced to a single point, viz: whether the affidavits filed made a prima fade case — that the defendants “were insolvent, and had removed or were about to remove any of their property from the State, with intent to defraud their creditors.” First, it is said that this is a question of fact, which has already been decided by the Circuit Judge, and, therefore, this court, in obedience to its well known practice, will not disturb that finding. It is true that this court has great respect for the findings of specific facts by a Circuit Judge; but we do not think that the Circuit Judge here made any such findings in this case. True, he set aside the attachments in the most general terms, without making any specific findings of fact. If he had done so,'this court would not have disturbed’such findings, unless manifestly against the weight of the evidence. As was said by the late Chief Justice Simpson in the case of Walker, Evans & Cogswell v. Bollwan Brothers, 22 S. C., 530: “In the examination of the testimony bearing upon these questions, we do not feel ourselves governed by the usual rule, where a finding of fact by the Circuit Judge is brought up for review, for the reason stated above, that we are unable to determine what precise questions of fact were found by the Circuit Judge, as involved in the general finding. * * * Had the Circuit Judge found upon these questions, then the rule referred to would be applicable; but in the absence of such distinct findings, the questions are open, and we must necessarily draw our conclusions from the entire — 168 — testimony as an original question. To what conclusions does this testimony lead us?” 3 Then the single question is, whether the affidavits filed with the clerk were sufficient to authorize him to issue the attach - ments. Concluding that they were sufficient, he issued them, and in doing so, we think he exercised properly the judicial authority reposed in him. “Fraudulent intent, is a matter which can only be proved by unguarded expressions, conduct, and circumstances generally. The allegation that a person has done a certain act ‘with a fraudulent intent, must necessarily be based upon information or belief, and, therefore, in such a case, the rule is well settled, that the sources of information, or the facts on which such belief is founded, must be stated.’ ”1 Or, as the [present] Chief Justice expressed it, in the case of Sharp v. Palmer, 31 S. C., 448: “We do not understand, as may possibly be supposed from expressions used in some of the cases, that a person desiring to procure a warrant of attachment is bound to wait until he can procure the affidavits of the persons who actually saw the acts done, or heard the declarations made, which constitute the grounds of his belief; upon his own affidavit, stating upon information and belief the facts upon which he relies, and giving the name of his informant, he may obtain the warrant, because he thereby furnishes the officer to whom the application is made, the evidence, which will prima facie prove the facts relied on, which, though not his own evidence, would be the evidence of a witness competent to prove such facts,” &c. We have read and considered the affidavits carefully, but being numerous, and some of them long, they can not, of course, be set out here; but we hope they may appear in the report of the case. We can do no more than state what we conceive to be the import of the most important of them. (1) The complaint in each of the cases was upon a money demand, and they were similar, except as to the amounts sued for and the names of the plaintiffs; each was sworn to by the plaintiff or his agent. All the affidavits were before the clerk, and — 169 — apply equally to all the eases. We know of no law, which, in suing out an attachment, limits affidavits to the plaintiff in the action. It seems to us there can be no doubt that there was shown prima facie a cause of action in each of the cases sued. (2) That the defendants were'consciously insolvent, and intended to go out of business in Beaufort, and out of the State in about ten days, as stated by their clerk, Mr. Sheppard, who, in consequence, was looking out for another job, “as his employers were closing out their stock with the intention of leaving the State,” we think reasonably appears from the affidavits of A. S. Guckenheimer, H. W. Tilton, C. E. Danner, Judson Lawton, and R. R. Legare, to which special reference is made. (3) The affidavit of Mr. Tilton states that C. F. Libbey told him that he had “closed up his house, and stored away his furniture during the absence of his wife;” and that he was subsequently informed that said furniture had been shipped by steamer for Boston, Mass. (4) The affidavit of Mr. Legare states that on October 5th, Mr. B. F. Libljey told him “they could not stay here on account of Mrs. Libbey’s health,” and offered to sell their stock of goods and merchandise in Bean-fort, including accounts due them in their business, at and for the price of $1,500; yet, on the next morning, October 6th, the same gentleman, Mr. B. F.' Libbey, represented to Mr. Danner, believed to be a creditor, that the stock of goods and merchandise in Beaufort was fully worth, and would bring at forced sale, $2,500, and that the accounts due them were worth $l,-000, making their assets $3,500. This was so different from his offer of the day before, that we can hardly think that the statement is satisfactorily explained by the supposition that on the first occasion the offer to take $1,500 had reference merely to his interest in the concern. Such is not the language of the affidavit, which says, ‘ ‘their stock of goods,” &c. This case, in its general features, is somewhat like that of Roddey v. Erwin, 31 S. C., 36, before referred to, in which the court said: “From simply reading the affidavits, with attention to the dates, we can not doubt that the defendant misled the plaintiff as to the disposal of his property, and his intention to leave the State. That the clerk was authorized to issue — 170 — the attachment-, and that it was error to set it aside as irregularly issued,” &c. The judgment of this court is, that the judgment of the Circuit Court in each of the above stated eases, in setting aside the warrant of attachment, be reversed; and that each of the seven cases be remanded to the Circuit Court for such further orders as may be necessary to carry out the conclusions herein announced. Footnotes [1] Myers v. Whiteheart, 24 S. C., 196, quoted in Roddey v. Erwin, 31 S. C., 46.