Mack, Stadler & Co. v. Jacobs

Woods, J., delivered the opinion of the court. The affidavit of appellants for the attachment alleges and charges “that Morris Jacobs is justly indebted to the said firm of Mack, Stadler & Co., in the sum of five hundred and thirty-five dollars, and that said defendants a non-resident of this state, or that he has converted, or is about to convert, his property into money or evidences of debt, with intent to place it beyond the reach of his creditors.” The plea in abatement of appellee avers “ that at the time' of suing out of said attachment, the said plaintiff’s debt on the cause of action on which they sue was not due;, and that he had not converted his property into money or evidences of debt with the intent to place it beyond the reach of his creditors,” etc. On this plea appellants went to trial, and the sufficiency of the plea was taken for granted by counsel on the respective sides, and by the court below. Here, in argument before us, the ground is taken that the plea in abatement did not challenge the propriety or sufficiency of the affidavit made to [435] procure the attachment. This ground, now taken here, is untenable, even if it had been assumed at the proper time in the court below. It will be remembered that, to sustain an attachment against one on the ground of non-residence, the debt sued for must be due. The affidavit in the case at bar charges that the debt sued for is due, and the brief of counsel for appellant frankly admits this. Two essential facts must concur to sustain the first ground of this attachment, viz.: the non-residence of the attached debtor, and the present maturity of the day of payment of the debt. The debtor, in the case in hand, was a non-resident; the debt was not due. "What Was the wrongfully attached non-resident debtor to plead? Plainly, he could not simply traverse the language of the affidavit only. He could not aver that he was a resident. He must plead, if at all, in effect, as follows: “ True, I am a non-resident of the state, but the debt for which my estate has been seized under attachment is not due, and, hence, I am not liable to attachment under the laws of this state, and this ground of attachment is not maintainable.” , And this is exactly what the .plea in abatement amounts to. It was the proper plea, the only plea, if the appellee desired to contest this alleged cause for which the attachment was sued out. It admitted one of the essential facts, and denied the other. The counsel and the court below were not in error in treating the plea as a sufficient traverse of the first ground of the attachment. This view disposes of the. errors assigned as to the action of the court in the rulings as to evidence, and it is only necessary to consider the refusal of the first instruction asked for the appellants. The instruction makes the solvency or insolvency of the attached debtor, and the belief of plaintiffs as to his condition financially, induced by the conduct and language of the defendant, prominent factors in determining the issue raised by the plea in abatement. This statement is so .glaringly inaccurate as to need no refutation. The belief of plaintiffs as to defendant’s solvency or insolvency was not [436] in issue at all, and their belief as to his supposed conversion of his property into money, etc., was not the issue to be tried and determined. That issue was : did the facts alleged in the affidavit for the attachment, and traversed by the plea in abatement exist? Of course, a case may be imagined when the defendant would be estopped to deny the truth of the fact alleged in the affidavit; and this, we suppose, is what this refused instruction was intended to tell the jury. But the statement of the principles of law contained in it find no support in any adjudications of this court. It is proper to say, too, that the evidence in the case did not warrant any instruction embodying the doctrine of estoppel applicable in cases of attachment. The first and fifth instructions given for appellee are not erroneous. The language employed is not precisely that used in the statute, but it could not have been hurtful, unless to the appellee himself. By the language of these instructions lie had, we think, a burden greater than that created by statute put upon him. Tie saddled himself with the task of satisfying the jury that the attachment was sued out maliciously, instead of wantonly, as the statute denominates it. It is not for appellees to complain, in our opinion. Besides, the jury was told by this instruction that, if the attachment was sued out with intent to oppress the defendant, then the verdict need not be confined to actual damages, but may include damages for injury to defendant’s reputation and credit, and the jury found that the-attachment was sued out with intent to oppress the defendant. The learned counsel for appellants suggest a doubt as to the constitutionality of the first section of the act of 1884 (Laws, p. 76), in which it is declared that verdicts like the one in hand shall stand, etc. We need only say that we can conceive of no ground upon which the doubt suggested, not urged, by counsel can rest. The statute creates and confers upon creditors an extraordinary remedy for the collection of their debts. Can any plausible reason be assigned for deny [437] ing to the legislature the right to prescribe the terms upon which creditors shall undertake to use and employ this extraordinary remedy against their debtors ? Affirmed.