John S. Sydnor v. Thomas J. Chambers, 1 Dallam 601

MORRIS, Justice. —John S. Sydnor appeared in person before Richard Morris, judge of the First Judicial District, and being duly sworn, made the following affidavit: “That Thomas Jefferson Chambers is justly indebted to him in the sum of $13,332.32; that said Chambers resides beyond the jurisdiction of the court, so that the ordinary process of law can not be served on him, and that an attachment is not sued out for the purpose of vexing or harassing the said Chambers, or other improper motives;” which affidavit was signed by said John S.

Sydnor and subscribed by the judge, as having been sworn to before him on the 17th of July, A. D. 1842.

On the 16th of August this affidavit, with a petition and bond, were filed in the clerk’s office of the county of Robertson, and on the same day the clerk issued a writ of attachment, in the usual form thereon, which writ was returned by the sheriff, “executed on certain lands of the defendant in said county.” At the term of the district court held for the county aforesaid, on the 24th of April, 1843, and on the 26th day of said month, the plaintiff’s attorney moved for a judgment by default against the defendant for want of a plea.

The defendant then came by counsel, and moved to quash the plaintiff’s attachment, on the following grounds: 1. Because the affidavit was made before the judge of the First Judicial District, on the 17th of July, 1842. 2. The writ was issued and the bond taken before the clerk of the Third Judicial District, on the 16th of August, of the same year. 3. That the attachment was not issued by the officer to whom the application was made. 4. The attachment was not sued out and signed by the proper officer, nor the papers returned in the manner prescribed by law. 5.

The proceedings were irregular, illegal and informal, and there was no proper affidavit made. 6. The writ was not signed by the judge before whom the affidavit was made, nor was any affidavit made before the officer who issued the writ and took the bond. The motion was overruled by the judge, on the ground that the objections there taken could only be raised by plea in abatement; which opinion of the court was excepted to by defendant.

The defendant then filed a plea in abatement, setting forth that the writ of attachment, as well as the affidavit and bond, were void and ought to be quashed, for the same reasons substantially as were stated in the motion. To this plea a demurrer was filed by the plaintiff, which demurrer was overruled by the court and the plea sustained. Whereupon the plaintiff asked leave to amend his affidavit, which was granted by the court and accordingly done.

The defendant asked leave to plead to the merits, which was refused by the court, on the ground that thr statute required that he should replevy the property before pleading, which he had failed to do; to all of which acts the defendant excepted. A jury was then impaneled, which found a verdict for the plaintiff for the amount claimed by him, with interest by way of damages. A writ of error was subsequently sued out to this court-; and it now stands before us for a revision. The causes assigned as error are as follows: 1.

Because there was no affidavit setting forth and averring the fact, relied on as the ground of the attachment, as existing co-ordinately with the emanation of the writ—the fact sworn to being referred to a date nearly a month previous. 2. The affidavit does not aver that by reason of the alleged non-residence the plaintiff was in danger of losing his debt. 3. The proceedings did not all originate before the same officer, but emanated from different officers of different judicial districts. 4. The want of a proper affidavit could not be supplied by amendment, at the time of the trial of the cause. 5.

The proceedings of the court below ought to have been quashed upon motion, and under any aspect of the case, the judgment of the court below ought to have been to quash the attachment, whether on the motion or the plea. And the court erred in allowing the amended affidavit to be filed. 6. The court below ought to have allowed the defendant to plead to the merits, without replevying the property. 7. The judgment of the court below was for more than the plaintiff alleged to be due, and for interest not declared for. 8. The security on the plaintiff’s attachment bond was his own counsel. 9.

The appropriate remedy is by motion to quash, when the proceedings are absolutely void for the want of legal requisites; and the remedy by plea in -abatement is merely correlative. We do not propose to discuss and decide all the various points which have been raised by the ingenuity of counsel in this case; but shall confine ourselves to those which are conclusive in our minds, and leave for future adjudication points which may admit of doubt but are not essential to the disposition of this cause.

Changing somewhat the order of errors as assigned by counsel, we shall first consider those grounds which are suggested as error, subsequent to the default taken by the plaintiff below, as set forth in the fifth and sixth assignments of error. We think that there was error in the court below, in the refusal to allow the defendant to plead to the merits, after the amendment made by plaintiff to his affidavit.

The record shows that the defendant asked leave to plead to the merits after the amended affidavit was filed, which was refused by the judge, on the ground that he had not filed his replevy bond as required by the eleventh

section of the statute of attachments. That

section prescribes : “That any person against whose estate, an attachment has issued, etc., may at any time before final judgment entered, or a writ of inquiry executed, upon giving special bail in double the amount of the debt, replevy the estate so attached and plead to the issue, so that the plaintiff is not thereby delayed of his trial, provided that the defendant shall not be required to give special bail before he is admitted to appear and plead.” We will premise any remarks upon this

section by saying, that so far as defendants are concerned the rigor of the rules of construction usually applied to attachments does not apply. It is to the plaintiff, who seeks to take advantage of the remedy, that those rules are applicable, and not to him who is brought unwillingly within their provisions. Although this

section be very awkward in its terms, still I do not see much difficulty as to its construction. We can not reasonably understand that Congress intended to deprive a debtor of the great right of defending himself in all proper methods against the claims of his creditor, especially, too, when that creditor by his own act had secured a lien on his property. If the

section would lead us to infer anything as to the legislative will, it would be that it was their intention to secure a right to the defendant, and not to deprive him of one; and that is the right to replevy the property which has been seized, by giving a bond in a certain amount; for it will be noticed that in no other

section of that act is this right of replevy secured to the debtor. In fact they seem anxious to prevent the possibility of misconstruction as to their meaning, for the proviso secures the right to appear and plead under all circumstances and in any instance. The creditor’s rights were secured and protected by the lien on property seized by virtue of his attachment; which property must, by the law, remain in the hands of the officer until a proper bond is given by the debtor.

The debtor’s rights are enlarged by permitting him to replevy that property by bond in a certain amount; but surely it can not reasonably be contended that, if unable to give that bond, it was the legislative intention that his lips should be sealed, and his defense, however meritorious, unheard. Such is not the proper construction, and the court erred in so ruling. We think that the court erred in permitting the plaintiff to amend his affidavit, after sustaining the plea in abatement filed by the defendant. The statutory remedy by attachment being

summary in its character and onerous in its effects, in other words, “in derogation of common right,” has by all courts and in all times, save when greater latitude has been given by statute, been restrained by the most rigid rules of construction. In G-rigg v. York this doctrine is laid down in our courts, and that it is the correct doctrine does not now admit of disputation. The right to amend the proceedings in attachments then does not exist, unless it be given in the statute of attachments, or by some other statute, in pari materia. No such right is found in the statute of attachments, passed in 1839, under which this action, is brought; but it is contended that by the twentieth

section of the law “establishing the jurisdiction and powers of the district courts” (volume 1, page 204), that the right is given.

That law says: “That every court shall have power to permit amendments in all proceedings whatsoever before verdict, so as to bring the merits of the question fairly to trial.” That proceedings in attachment are in the nature of civil suits, and to be governed by the ordinary rules applicable to such suits and prescribed by Congress—unless such rules be excluded in express words, ot manifestly repugnant to the nature of the attachment process—is too plain a proposition to be controverted, and has been expressly decided by our court. See Fowler v. Poor.

But that, for that reason, the law of amendments prescribed for the usual civil actions in courts of justice applies to the particular class called attachments, by no means follows. The Congress, in passing laws, are presumed to intend that the usual and universal rules of construction applied by courts to laws of a similar character will be given; and unless they wish such to be the rule of construction of the courts, they will express in terms a contrary intention. The rule of construction given by courts to laws regulating ordinary civil suits is liberal and comprehensive.

The rule of construction given to the extraordinary process of attachment is, on the other hand, rigid, severe and restricted. These rules are the law itself, and we must presume that when it is the intention of Congress to change this law as to either class of cases, they will so expressly declare in words, or by implication so direct as to admit of no doubt. Many of the general enactments might apply to each class of cases; but when the rule of construction which forms the most prominent distinction between the two is to be touched, then the words must be distinct, or the implication indubitable.

This law of amendments was passed nearly three years prior to the statute' regulating attachments, and it applies to proceedings in common civil suits. The statute of attachments is silent on the subject of any amendment to ameliorate the rigor of construction which will necessarily be given to it by the courts; and it even by intimation, in the fourth section, avoids the conclusion that the Congress willed that any law of amendment should apply.

The policy of the law is against permitting amendments to affidavits for any purpose, much less where the interests of parties might lead them to perjury; and whilst courts and juries look with suspicion and distrust on the oaths of persons whose interests are involved in any instance, they turn with holy horror from amended swearing. We think, therefore, that the court erred in permitting an amended affidavit to be made. It is contended, however, here, by the appellee, that the affidavit was not defective, and that it as well as the other proceedings under it were regular and proper.

The objections taken to the affidavit were that it was defective in not containing an averment, “that the plaintiff was in danger, in consequence of the alleged nonresidence of said defendant, of losing his debtand second, that it was defective in not being made at the same time in which, and before the same officer by- whom the other proceedings were had; having been sworn to, nearly thirty days before it was filed in the clerk’s office, before the judge of the first district. A mere inspection of the third

section of the statute regulating proceedings in attachment will show that the first objection taken is untenable. One of the substantive and distinct grounds for suing out an attachment is, that the party against whom it is sought “resides beyond the jurisdiction of the court, so that the ordinary process of the law can not be served upon him;” and when that is sworn to, along with the succeeding requisites, to wit, “the amount due, and the statement that the attachment is not sued out for the purpose of vexing or harassing the defendant,” the affidavit is complete and proper.

On the second point, I am instructed by a majority of the court to decide, that it is a fatal defect. The intention of the statute is that these proceedings, viz., the affidavit, the bond and the writ, shall be as nearly a simultaneous

an act as possible. Various persons are qualified under the statute to issue this writ, and each and every one has perfect and complete power over all the proceedings to the time of the delivery of the writ to the executive officer. A judge, a justice, or a clerk can take the affidavit and bond and issue the writ, returnable as the nature of the case may require; and it is likewise the duty of the judge, or justice, to return the bond and affidavit into the proper court.

The rights of the plaintiff would not be endangered; for under no supposable case could it happen that he would be deprived of his remedy for want of an officer to whom he could make the application; whereas, the rights of the defendant would be seriously affected, if an affidavit to a fact, which may have existed at the time it was sworn to, should be held up for months, and then put into life and being after an entire change of the facts and circumstances of the case.

No final and invariable rule could be adopted by the court as to the length of time which should elapse before the presumption of indebtedness (on an affidavit taken months before) would cease to exist, or the grounds for the affidavit have passed away. The spirit and intention of the law are against it; and the court below did not err in sustaining the plea of the defendant on that point. We have seen, however, that there was error in permitting the plaintiff to amend his affidavit after that decision, and proceed on the merits.

The affidavit being null and void on account of its defective taking, all the proceedings thereon were void; and the judgment of the court below should have been what the judgment of this court now is, an entire dismissal of the cause. It is therefore ordered that the judgment of the court below be annulled and reversed, and that the case be dismissed at the costs of defendant in error. Reversed and dismissed.