Addison v. Sujette

27 S.E. 631, 50 S.C. 192, 1897 S.C. LEXIS 19

• Court: Supreme Court of South Carolina
• Decided: July 28, 1897
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Chiee Justice McIver.

This was an action for slander, in which the plaintiff obtained from the clerk a warrant for attachment, under which the sheriff seized forty-nine head of horses as the property of the defendant, and at the same time obtained an order for arrest and bail, under which the defendant was arrested by the sheriff of Rdgefield County. The defendant gave notice of a motion to set aside the attachment, and also to vacate the order of arrest. This motion was heard by his Honor, Judge Buchanan, who granted an order setting aside the order of arrest, and refusing the motion to set aside the attachment, but requiring that the plaintiff execute a new attachment bond to the defendant in the sum of $2,450, in lieu of the bond for $250 required by the clerk upon issuing the warrant of attachment.

From this order both parties appeal, the plaintiff imputing error in setting aside the order of arrest, and in requiring him to execute a new bond in an increased amount, and the defendant imputing error in refusing to vacate the attachment.

For a full understanding of the questions raised by the appeal, the reporter will incorporate in his report of this case the following papers set out in the “Case:” 1st, the complaint, including the verification thereof. 2d. The affidavit to obtain the attachment. 3d. The affidavit to obtain the order of arrest. 4th. The notice of the motion above referred to. 5th. The order of Judge Buchanan. 6th. The grounds of appeal.

1 In the argument before this Court, counsel for plaintiff has raised what may be regarded as a preliminary question, which should first be disposed of. The point made is that, inasmuch as the notice of the motion to vacate the attachment is based upon the grounds that the attachment was improvidently issued, the only issue that the Circuit Judge was at liberty to consider, so far as that motion was concerned, was whether the facts stated in the affidavit, upon which the attachment was applied for, were true, that no question of irregularity could be raised or considered under that notice. This position is based upon what seems to be an incorrect view of the scope and effect of the notice of the motion. It will be observed that it is stated in the notice that the motion to vacate the attachment will be made “upon the grounds” — plural and not singular — “that it appears upon the face of the pleadings and affidavit thereto annexed that said attachment has been improvidently issued, and is without warrant of law, and that said attachment proceedings are, therefore, .null and void.” It is apparent, therefore, that the plaintiff was distinctly advertised by the terms of the notice, that the motion would be based, not upon the single ground that the attachment was improvidently issued, but upon the two grounds that the attachment was improvidently issued, and that it was issued “without warrant of law.” It is true, that the word “irregularity” is not found in the notice, but the words there found, “without warrant of law,” signify the same thing. See Monday v. Elmore, 27 S. C., at page 129, where the late Chief Justice Simpson very clearly explains the difference between an attachment irregularly issued and one that is improvidently issued: “an attachment is irregularly issued when it appears upon the face of the proceedings that there is no ground for the attachment; in other words, when the affidavit fails to contain the conditions upon which the law authorizes such a proceeding, to wit: that a cause of action exists, that a certain sum is due, and that defendant has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, any of his property, with intent to defraud his creditors.” If, therefore, the affidavit fails to state “the conditions upon which the law authorizes” the issuance of an attachment, then the attachment is issued “without warrant of law,” is irregularly issued. This preliminary objection raised by plaintiff must, therefore, be overruled, and the way is open to consider the several grounds upon which the attachment is assailed.

2 The first ground of attack is that the affidavit upon which the warrant of attachment was issued was insufficient, in that it was not therein made to appear that a cause of action existed against defendant. Section 250 of the Code provides that “the warrant may be issued whenever it shall appear by affidavit that a cause of action exists against such defendant, specifying the amount of the claim and the grounds thereof.” Now, in this case, it is very obvious that the affidavit upon which the warrant of attachment was obtained does not comply with this requisition of the Code. It does not even purport to set forth the cause of action, and certainly does not specify the amount of the claim or the grounds thereof, except “by reference to the sworn complaint hereto annexed as a part of this affidavit, all the statements and allegations contained in which are true to his own knowledge, except the statements and allegations therein made on information and belief, and as to such statements and allegations he believes the said complaint to be true.” Now, it may be true that a duly verified complaint, if attached to the affidavit upon which an attachment is applied for, and therein referred to as a part thereof, may be regarded as a part of such affidavit, yet, in this case, the essential condition that the complaint has been duly verified, is wanting. Referring to the complaint, there is not a single statement or allegation therein made which purports to have been made upon information and belief, and yet in t'he verification the plaintiff said under oath: “that the within complaint is true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true.” Such a form of verification we held to be insufficient in the case of Hecht v. Friesleben, 28 S. C., 181, and again, more distinctly, in Burmester v. Mosely, 33 S. C., 251. It is a mistake to suppose that these two cases were, in any way, shaken or modified by the subsequent case of the State v. Railway Company, 45 S. C., 470, for in that case Mr. Justice Pope, in delivering the opinion of the Court, very clearly points out the distinction between the last named case and Hecht v. Friesleben and Burmester v. Mosely, as follows: “the allegations of the complaint were made as if upon the affiant’s own knowledge; whereas the form of the verification showed conclusively that some of the allegations were intended to be made upon information and belief, but which were so intended it was impossible to ascertain. In the case at bar, however, some of the allegations in the complaint are expressly stated to be made on information and belief, while there were others not so stated, and hence the form of verification adopted is unexceptionable.” In the case now under consideration, no such distinction can be found, and, on the contrary, it is identical with the cases of Hecht v. Friesleben and Burmester v. Mosely, and must be controlled by them. Nor does the language used in the affidavit help the matter, for, in referring to the allegations of the complaint, the very same language as that found in the so-called verification of the complaint is used. It is clear, therefore, that the affidavit upon which the warrant of attachment was issued was fatally defective, in that it was not therein made to appear “that a cause of action exists against such defendant, specifying the amount of the claim and the grounds thereof.”

3 It is contended, however, by counsel for plaintiff, that granting all this to be so, yet the defects in his affidavit have been supplied by the statements found in the affidavit of defendant, which he says were submitted at the hearing of the motion. There are several objections to this contention. In the first place, it does not appear that this affidavit was mentioned in the notice of the motion amongst the papers upon which the motion was based, nor is it mentioned by the Circuit Judge as one of the papers upon which he heard the motion. But waiving all this, the conclusive answer is, that the Circuit Judge ■would have had no right to consider it, even if it had been formally presented. The only question before the Circuit Judge was whether the clerk had erred in issuing the warrant of attachment, without authority of law, and that question could, of course, only be determined by an examination of the papers upon which the clerk acted, and there was no pretense that this affidavit of the defendant was before the clerk at the time he issued the attachment. As was said in Myers v. Whiteheart, 24 S. C., at page 204: “The question before the Judge was whether the attachments were properly issued in the first instance, and to determine that question he could only consider the grounds upon which the attachments were originally applied for, and not any new facts or new grounds for the first time stated at the hearing of the motion to discharge the attachments. The question to be decided was whether the showing made at the time the attachments were issued was sufficient. It is true, that the Code provides that if the application to discharge an attachment be based upon affidavits on the part of defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs; but this manifestly means that the plaintiff may by affidavits contradict or rebut the statements made in the affidavits submitted by the defendant, and not that he may state new facts— make a new case.” Hence, we suppose that where a motion is made to vacate an attachment upon the ground that the facts stated in the affidavit upon which it was issued are not true, that it would be competent for the plaintiff to offer affidavits in reply to or rebuttal of the showing made by the defendant. But where the affidavit upon which the attachment is issued is fatally defective, in failing to show any one or more of the conditions necessary to the allowance of such a remedy, such defect cannot be supplied by affidavits submitted at the hearing of a motion to vacate. Even, therefore, if the defendant had admitted the plaintiff’s cause of action, instead of practically denying that the plaintiff had any cause of complaint against him, as he seems to have done in his affidavit, that could not supply the defect in plaintiff’s original affidavit, and could not be considered on a motion to vacate the attachment, because issued without authority of law. It seems to us, therefore, that the Circuit Judge erred in refusing to vacate the attachment upon the ground that the affidavit upon which it was issued was fatally defective.

4 5 There is, also, another ground npon which the attachment should have been vacated. The remedy by attachment rests solely upon statutory enactment, and can only be resorted to in those cases provided for by statute. We are unable to find any statute which allows this remedy in actions for damages for injury to character. It is quite certain that, prior to the Code, an attachment could not have been obtained in an action for slander. Sergeant v. Helmbold, Harp., 219, where Nott, J., in delivering the opinion of the Court, used the following language: “The process of attachment was not allowed at common law. Several acts of the legislature of this State have authorized it in certain specified cases, where the ordinary process of law cannot be served. The first act on the subject was passed in the year 1744, Pub. Eaws, 187, embraces only cases arising upon contracts. The act of 1783, Pub. Eaws, 315, extends it to torts; but it is only to torts, trespasses or injuries ‘actually done to property, real or personal.’ It does not include cases of slander, and we must not extend it by construction beyond what the letter or spirit of the act will permit.” The language thus quoted from this eminent jurist clearly shows, not only that an attachment could not, under the former law, have been obtained in an action for slander, but, also, that the purpose of the act of 1783 was, not as plaintiff’s counsel contends, simply to make real as well as personal property of an absentee liable, but to extend the remedy by attachment to cases of torts actually committed on real or personal property. So that our inquiry is narrowed down to the question, whether the Code has extended the remedy by attachment to actions for slander or injury to character. For this purpose, sec. 248 of the Code is relied upon as extending the remedy by attachment to actions of slander. That section is too long for insertion here, especially as it is so easily accessible. It seems very clear to us that the object of that section was of a two-fold character: 1st, to designate the various kinds of action in which the remedy by attachment could be resorted to, and 2d, to indicate the persons — using that term in its broadest sense, so as to include corporations as well as natural persons — against whom the remedy might be obtained. The first inference which we draw from the language used in this section is the natural, if not necessary one, that the legislature did not intend that the remedy by attachment could be resorted to in any action brought for any purpose, against any one of the persons designated in the subsequent portions of the section; for if such had been the intention, it would have been very easy and much more simple to say so in plain words. The very fact, therefore, that the legislature has chosen to specify actions brought for certain purposes, as those in which the remedy by attachment could be resorted to, affords an irresistible inference that there were actions for other purposes, in which it was not intended that the remedy by attachment should be allowed. The language used is: “In any action for the recovery of money or for the recovery of property, whether real or personal, and for damages for the wrongful conversion and detention'of personal property, or an action for the recovery of damages for injury done to either person or property, &c.” Now, while in one sense an action for slander or as, for that matter, any other action on the law side of the Court, might be regarded as “an action for the recovery of money,” yet it is manifest that the legislature did not use those terms in that sense; for in the very same sentence the legislature proceeds to specify actions “for the recovery of damages for injury done to either person or property;” which, of course, are just as much actions for the recovery of money as an action for slander. When, therefore, we find that under the well settled law prior to the Code an attachment could not be issued in an action for slander, which it must be assumed was well known to the legislature, and when we further find'that the terms used in the Code do not necessarily include an action for slander, and can only be made to do so by a strained construction, the irresistible inference is that the legislature did not intend to change the previously existing law by including the action for slander amongst those in which the remedy by attachment might be resorted to. And when, in addition to this, we find in the very same Code a provision is inserted allowing another provisional remedy — arrest and bail — to be used in an action where the injury is “to person or character''' (subdivision 6 of section 200), the conclusion is inevitable that there is np statutory provision allowing a resort to the remedy by attachment in an action for slander.

6 Under this view of the case the other question, as to the power of the Circuit Judge to require the plaintiff to increase the amount of his bond, cannot arise, and, therefore, need not be considered. We may say, however, that as at present advised, we see no reason why a Circuit Judge may not, as a condition.of refusing a motion to vacate an attachment, require the bond to be increased, upon a proper showing that such increase is necessary to effect the ends of'justice.

7 The only remaining question — whether there was error in setting aside the order of arrest — is practically disposed of by what we have said in reference to the defects in the affidavit upon which warrant of attachment was obtained, for the two affidavits both present the same defects. Section 202 of the Code requires that the order of arrest may be obtained upon an affidavit “that a sufficient cause of action exists,” and in this respect the affidavit relied on is fatally defective, as shown above. The fact that the plaintiff has stated in one of his exceptions that the order setting aside the order of arrest was based upon the ground that the Circuit Judge stated as his reason for setting aside the order of arrest, that an order for the arrest of defendant could not issue at the same time with the attachment, has no foundation in the “Case” as prepared for argument here, and cannot, therefore, be considered. Indeed, the “Case,” as printed, shows that.plaintiff made an unsuccessful attempt to incorporate that fact in the “Case,” and this affords an additional and conclusive reason for declining to consider it.

The judgment of this Court is, that the order appealed from, in so far as it refuses to set aside the attachment, be reversed; but in so far as it sets aside the order of arrest, it be affirmed.