Enders v. Smith

Dodge, J. The question raised by appellant is whether sec. 3032, Stats. 1898, is distinct from and independent of secs. 3030,. 3031, or is merely ancillary thereto, imposing additional steps and conditions upon which an arrest in lieu of a mere order for examination is authorized by one or other of the preceding sections. Sec. 3030 in effect provides that after the issue of an execution and its return unsatisfied the judgment creditor, upon those facts alone, is entitled to an order requiring the judgment debtor to appear before a judge and answer “concerning his property.” Sec. 3031 provides that after the issue of an execution, and before its return, upon proof to. the satisfaction of a judge that the judgment debtor [643] Ras property which Re unjustly refuses to apply towards tRe •satisfaction of tRe judgment, whether subject to execution or not, tRe judge may make an order requiring Rim to appear and answer “concerning tRe same.” Sec. 3032 provides: “Instead of making an order requiring tRe attendance of tRe judgment debtor, as provided in tRe two preceding sections, tRe judge, upon proof by affidavit, to Ris satisfaction, tRat there is danger of tRe judgment debtor’s leaving tRe state or concealing -himself and that there is reason to believe that he has property which he unjustly refuses to apply to such judgment, may issue a warrant requiring the sheriff . . . to arrest him and bring him before such judge to .answer concerning his property.” As appellant justly states, there is no pretense that the execution had been returned, so that we may dismiss from consideration sec. 3030. He contends, however, that where it appears that the execution has not been returned, then, in order to arouse the jurisdiction of the magistrate to issue an order of arrest, the creditor must prove by affidavit, to the .satisfaction of the magistrate, everything that is required either by sec. 3031 or sec. 3032; that only when he establishes a case for an order for examination under sec. 3031 can he have the order of arrest, which Re insists is only authorized in lieu thereof by sec. 3032 upon certain additional facts. This being Ris argument, Re attacks the sufficiency of the respondent’s affidavit upon the authority of Smith v. Weeks, 60 Wis. 94, 18 N. W. 778, which held void an order for examination made under sec. 3031 for two reasons: first, that it disclosed that the property concealed by the judgment debtor was tangible property subject to levy on execution, to which that section, as it then existed, did not apply; secondly, because it did not specify the property claimed to be con cealed. The first of these objections has since been obviated by amendment in the revision of 1898, when were inserted the words, “whether subject to execution or not.” TRe second objection to the present affidavit, if it must satisfy the [644] requirements of sec. 3031, is perhaps still cogent, it being held in Smith v. Weeks that the court was confined to an examination concerning the specific property described in the affidavit, because the statute only authorized that the judgment debtor be called to “answer concerning the same” property which the affidavit declared he unjustly refused to apply towards the satisfaction of the judgment; hence, impliedly, the affidavit must describe some property. See Smith v. Weeks, 60 Wis. 106, 18 N. W. 782. This expression, “the same,” has been held to differentiate the scope of sec. 3031 from sec. 3030 which authorized an inquiry generally as to the property of the ^judgment debtor. In New York, however, whence these statutes were borrowed, the rule that the affidavit must describe some property is based on a different ground, namely, that, since the proceeding does not lie against property which can be levied upon, therefore the affidavit must show that the property is unleviable either in character or by reason of concealment (Manken v. Pape, 65 How. Pr. 453); a reason which would seem to have been removed by the amendment to our sec. 3031 above mentioned. Further, in New York it is held that such requirement is not jurisdictional if debtor submits to the examination without objection and the proof thus obtained supports the order. First Nat. Bank v. Wilson, 13 Hun, 232. Such reasons would furnish no support for appellant’s conclusion that the final order imposing costs is either void or erroneous, even if we conceded the proposition that the proceedings must satisfy all the requirements of sec. 3031 as well as those of sec. 3032. But we cannot persuade ourselves that such construction of sec. 3032 is warranted either by language or context. That section, according to its letter, is complete in itself. It authorizes the arrest and examination of the debtor whenever the affidavits show danger of departure from the state and reason to believe in existence of property unjustly withheld from application to the‘judgment. This latter requirement [645] fox the affidavit under sec. '3032 would be well-nigh absurd upon the appellant’s theory that it must also satisfy sec. 3031, which requires proof of the. very fact of existence of such property, not merely of mere reason to believe in it. Again, sec. 3032 authorizes a broader field of - examination upon proof of the facts it prescribes, to wit, as to the debtor’s property generally, instead of merely that described in the affidavit. Nor is there lack of good reason why full examination should be authorized with less of specification or other restriction when there is danger of the debtor’s departure from the state. In that case creditor and court must act promptly without the opportunity to gain information as to the debtor’s property either for purposes of specification under sec. 3031 or to enable the officer to honestly make return nulla bona. Courts must not ignore nor construe away the words of a statute in which lurks no ambiguity, which, as we have already said, seems the case-here; at least, unless the result be substantially absurd, or unless, perhaps, those words may have acquired a fixed meaning before their adoption by our legislature. We can discover nothing of absurdity in the enforcement of sec. 3032 according to its exact words, nor can we discover that the same words existing in sec. 292 of the ’-New York Code from 1851 to 1880 ever acquired any other construction. They were changed in the revision of the latter year. See sec. 2431, Ann. Code 1ST. Y. We conclude that, since both the affidavit and the sifbse-quent proof showed attempt by appellant to secrete property and his unjust .refusal to apply.it to the judgment, the magistrate acquired jurisdiction in the premises; and further that, since the misconduct of the debtor had made necessary the proceeding, the order awarding costs against.him was proper under sec. 3038. By the Oourt. — -Order affirmed.