Howard v. Oppenheimer

Weisel, J., delivered the opinion of this Court. This case presents questions of practice under the Act of 1864, ch. 306, being a sub-title to the codified attachment law of the State, under the head of “ Attachments on Original Process.” The first section of this Act specifies four cases in which an attaching plaintiff shall have the right to proceed by attachment. Two of these contain branches in the disjunctive. These two are incorporated in the affidavit in this case, in the language used in the said section. And it is alleged on the motion to quash, that this is fatal to the proceeding inasmuch that the charges in the affidavit are all — 362 — in the alternative, whereas they shonld be specific and distinct, so that if false, the party swearing falsely could be prosecuted for perjury. There is no doubt that as they are put disjunctively, to allege either one would have been sufficient. But it does not follow that to allege all is to allege nothing distinctly, or within the design and intent of the Act. Nothing must be alleged which the Act does not authorise. A case different from that authorised by the law would not be within its purview or design. Here the objection is that the charge is broader than is necessary; but its extent is not beyond what the law allows. The party making the affidavit can cover the whole ground, if his case admits of it, within his knowledge or belief. In this case he swears only that the plaintiffs have good reason to believe that the defendant has done, or is about to, do the matters complained of, with intent to defraud his creditors. This form of affidavit has been long sanctioned in Maryland under the Act of 1795, ch. 56, in the case cf an absconding debtor who may be alleged “ to have actually run away, or fied from justice, or removed from his or her place cf abode,” the affiant not being confined to one or the other cf the disjunctive charges or allegations. It is also objected as irregularities that the cause of action was not produced before the clerk of the Court and so certified by Mm, and that the bond which the plaintiffs were required to give was not approved by the clerk. ■ The law requires that at the time of making the affidavit the plaintiff shall produce the bond, account or other evidence of the debt by which the debtor is indebted, and the same shall be filed among the papers in the cause. The law does not provide that this production shall be certified to in the certificate that sets forth the affidavit. That the cause of action should be produced when the affidavit is made to be filed among the papers in the cause is one of the condi» — 363 — tions upon which the right to the writ depends, and it must so appear among the proceedings; and we think that this requisite does sufficiently appear in the record, not only in the introductory certificate of the record, but in the recital of the writ, which is issued and signed by the clerk before whom the affidavit was made. It would be the better practice for the clerk to certify such production in the certificate which contains the affidavit, according to the form used in proceedings under the attachment law upon warrant, but as the law does not require this to be done, its omission in the certificate of affidavit is no irregularity. The law also requires the approval, by the clerk, of the bond to be given by the plaintiff, before issuing the attachment. This should appear also from the proceedings, and we think that the memorandum of acceptance on the bond, though not signed by the clerk, and the recital in the writ issued and signed by him, that the bond was produced and filed in Court at the time the account was filed and the affidavit made, are sufficient evidences of his approval of the bond. We find, also, that the condition of the bond is in the words prescribed in the 41st section of the law, and, therefore, complies with the law, and that this condition is broad enough to cover the costs to any other persons interested in the proceedings, beside the defendant, who could sue for their use. See Rev. Stat. of Ill., p. 64, secs. 4 & 5, and Love vs. Fairfield, 5 Gilm., 303 & 304. We, therefore, think that on neither of these grounds were these proceedings liable to be quashed. But the main ground relied upon by the garnishee to sustain his motion to quash the attachment, was the one assigned in the first cause, or objection, in which he claimed the property attached and seized under the writ as his own, at and before the time of seizure, and that the defendant in the attachment then had, and that he now has, no interest whatever, or right, in and to the same. — 364 — It appears from the record, that after filing the motion to quash, the Court below ordered it to be set down for hearing on a day named, by consent of counsel, with leave to both parties to take such testimony, to be used at the hearing of the motion, as they might desire, upon the usual notice; and that the parties afterwards produced and filed in Court certain testimony, and agreed to an order, that at the hearing of the motion the depositions filed should be used and have the same effect as if taken before a commissioner of the Court, subject, however, to all exceptions as to admissibility and relevancy. This testimony consisted, on the part of the garnishee and claimant, of a bill of sale made and executed to him by the defendant in the attachment, on the 3rd day of June, 1864, (thirteen days before the issuing and levying of the attachment,) for all his property, including the articles levied on and scheduled under the attachment, and the deposition of Ernest Oppenheimer, the defendant; and on the part of plaintiffs, of the depositions of ¥m. H. Myers and P. T. Wilson, with a concession that the testimony of Ernest Oppenheimer, in reference to the identity of the property taken by the sheriff with the property conveyed by the bill of sale, was not to be disputed. The bill of sale was duly acknowledged and sworn to on the day of its date, and it was admitted in the argument in this Court that it was recorded in the proper office on the same day. It was strongly urged in the argument on the part of the appellants, that the Court below erred in trying and deciding, on a summary motion, and without the intervention of a jury, the merits of the cause and the question of fraud raised against the bill of sale upon which the garnishee and claimant relied as proof of his title; that the Court, in a doubtful case, and under the Constitution of Maryland, should have referred that matter to a jury; and further, as the Court did take cognizance of it, it erred in allowing certain — 365 — evidence which was objected to by the claimant, and in its application of the testimony relied on to establish the fact of fraud. In attachment cases, in which other parties interpose claims to the property seized under the writs, a practice prevails in Maryland, which has been sanctioned, for docketing cases between the claimants and the attaching creditors, and trying the title on issues framed or made by the pleas, by a jury, before the Court makes final disposition of the attachment. This course is to be commended, and doubtless would have been pursued in this cause had application been made. On such an application we regard it would have been the duty of the Court to have granted it, and had the question of the bona jides of the bill of sale, and all other facts in proof of the title, submitted to the jury under such instructions as might arise, as in other jury trials. This right to the trial by jury of all issues of fact in civil proceedings in the several Courts of law in this State, wdiere the amount in controversy exceeds the sum of five dollars, is guarantied by the Constitution of this State. Const. of 1851, Decl. of R., Art. 3, and Art. 10, sec. 4. Const. of 1864, Decl, of R., Art. 4, and Art. 12, sec. 5. In this case neither party asked for a jury. On the contrary the record shows, not only an absence of such an application, but an agreement and preparation for its submission to, and trial by, the Court; and the Court having taken cognizance of it, as it eould do in such a case, in this summary way and in a summary proceeding, the objection to its exercise of the right of the Court to try the merits ot the case comes too late. That the Court has this right upon the motion to quash, the law, as derived from the case of Campbell vs. Morris, decided in 1797, and reported in 3 H. & McH., 535, was relied on as of controlling weight and authority. The opinion of the General Court, pronounced in that case by Judge — 366 — Chase, (552, 553,) is full and exTilicit, not only as to the province of the Court without the intervention of a jury, but as to the summary nature of an attachment proceeding prior to its dissolution under the old system, and the mode of proceeding by suggestion either from the defendant in the attachment, or a third person claiming an interest in the property attached, for the purpose of showing that the property taken did not belong to the defendant, and for taking proof dehors the proceeding to establish the claim. In that case condemnation was refused, and the exceptions were taken from rulings on the question of title. The cause went-to the Court of Appeals, and upon the hearing there, this precise question as to the province of the Court below to hear and determine the merits without a jury, was fully and ably argued among the other interesting and important points which arose in that case. The Court of Appeals reversed the judgment of the General Court and gave judgment of condemnation. Although it does not appear — no opinion of the Appellate Court having been filed — on what grounds the reversal took place, yet the opinion of the General Court, on the point in question, and in all its parts, has been so recognized by this Court in various decisions in more recent cases, and has become so interwoven with the attachment law and practice in this State that it can be no longer questioned as ■settled law. It was so recognized in Ranahan vs. O'Neale, 6 G. & J., 301. Stone vs. Magruder & Brook, 10 G. & J., 386. Barr vs. Perry, 3 Gill, 323. Lambden vs. Bowie, 2 Md. Rep., 338. . Recurring, then, to-the judgment of the Court below, so far as that judgment was grounded upon the merits, the bona Jides of the bill of sale, it is to be reviewed by this Court upon the proofs in the record. It arose upon a summary motion to quash, and that motion, upon the proofs introduced, is before us as it was before the Court below. The objections taken by the garnishee and claimant to — 367 — certain testimony pointed ont in the record, went upon the ground that it was designed to contradict the witness, Ernest Oppenheimer, who, "by the course of the examination pursued by the plaintiffs, was to be regarded as their witness in the matters upon which he was examined by them; that these were not subjects of legitimate cross-examination, but of ex-amination-in-chief. Ernest had been examined by bis brother, the claimant, to identify the goods taken under the writ as a part of those he had sold to his brother under the bill of’ sale, and that they belonged to his said brother. The plaintiffs then examined him as to the manner of payment of the consideration, his connexion with the goods, Ms possession of them, the manner of the sale, the agency of his brother in it, and the manner of his exercise of ownership over the property, the application of the money, &c., all evidently with a view to show fraud in the transaction. This, we think, it was competent for the plaintiffs to do by way of cross-examination. It related to, and was explanatory of, or characterized the ownership of the property of Ms brother, of which he had spoken and testified in Ms examination-in-chief. As the witness of the claimant throughout, it was, therefore, clearly competent for the plaintiffs to introduce the testimony which was objected to, the purport of which was to-contradict him upon matters connected with, or growing out of, the transaction. That testimony was, therefore, properly admissible. ~We do not think that the testimony of Ernest Oppenheimer, drawn ont on the cross-examination, is sufficient to overcome the deed made by him to Ms brother. That instrument was regularly executed, acknowledged and recorded, and the truth and fairness of its consideration sworn to by the grain-tee, as required by the law. Circumstances are deposed to ■ by the witness which cast a shade of suspicion over the trails- - action, and again some facts which sustain its validity. The consideration was paid; it was equal, so far as we can judge,, — 368 — to the Value of the goods; the grantee proposed to sell them at auction and realize what he had paid; he yielded to the suggestion of Ernest to retail them by his agency; this mode of sale had been entered upon and was in progress when stopped by the attachment suits, and the money realized from the sales, in the brief interval of two Weeks, was paid to the grantee. The case is too doubtful to justify a judgment that the transaction was stamped with fraud, and We, therefore, yield to the legal force of the bill of sale, and concur with the Court below in quashing the attachment. (Decided July 11th, 1866.) Order affirmed.