Fisher v. Secrist

48 F. 264, 1891 U.S. App. LEXIS 1586

• Court: U.S. Circuit Court for the Northern District of Illnois
• Decided: November 16, 1891
• Status: Published

Opinion

Gresham, <1.

This is a motion to quash a writ of attachment based upon an affidavit, the material parts of which read—

“That Sophia S. Secrist, defendant herein, is indebted to this affiant, after allowing all j ust credits and set-offs, in the sum of twenty-four thousand dollars ($2t,(J0U) damages and interest upon the covenants in the deed, a copy of which is hereto annexed and made a part of this affidavit. Affiant further says that said indebtedness was fraudulently contracted on tiro part of said Sophia S. Secrist; and, further, that certain statements were made by said Sophia S. Secrist by John M. Secrist, her agent, which constitute said fraud, and that said statements were reduced to writing, and that the signature of said Sophia S. Secrist by her said agent is attached thereto. Affiant further says that said indebtedness was fraudulently contracted on the part of said Sophia S. Secrist; and, further, that certain statements were made by said Sophia S. Secrist, by her agents It. A. Kimbel, Thomas Lomax, IV. 0. Crosby, and O. M. Wells, which constitute said fraud, and that said statements have been reduced to writing, and that the signatures of said agents are attached thereto.”

Section 2 of an act governing proceedings in attachment (1 Starr & C. St. p. 310) reads:

“To entitle a creditor to such writ of attachment, he, or his agent or attorney, shall make and file with the clerk of such court an affidavit setting forth the nature and amount of the indebtedness, after allowing all just credits and set-off's, and any one or more of the causes mentioned in the preceding section. ”

The proceeding was commenced under subdivision 9 of section 1, which reads:

—“When the debt sued for is fraudulently contracted on the part of the debtor: provided, the statements of the debtor, his agent or attorney, whicli constitute the fraud, shall be reduced to writing, and his signature attached thereto by himself, agent, or attorney. ”

The deed contains the usual covenants of warranty, but there is no averment in the affidavit of a breach of all or any of them. The only description of the claim or demand is that the defendant is indebted to the plaintiff “in the sum of twenty-four thousand dollars damages and interest upon the covenants in the deed.” This is not a “setting forth of the nature and amount ol' the indebtedness,” within the meaning of the statute. The affidavit should state the facts relied on as breaches of the covenants, and the damage sustained by each breach. The action was commenced by praecipe, and no declaration has been filed.

There is another, and no less fatal, objection to the affidavit. The writ cannot issue under subdivision 9, unless an affidavit of the creditor, his agent or attorney, shows, otherwise than by mere averment, that the debt was contracted by means of written fraudulent representations or statements bearing the defendant’s signature attached by himself, or his authorized agent or attornejT. The defendant’s signature is not attached to the statements made by the agents ICimbel, Lomax, Crosby, and Wells. The other alleged fraudulent statements, it is averred, were made by the defendant’s agent John M. Seerist, who attached her signature to them. But a copy of them is not made-part of the affidavit, nor is the substance of them embodied in it. The creditor is not permitted to determine for himself that the written statements, if there be any, are such as entitle him to the wait. The proviso of subdivision 9 rvas doubtless deemed necessary to protect the debtor against abuse of process in a proceeding which is-summary pnd strictly statutory. It is true that, under the construction which the supreme court of the state has given to the preceding'clauses of the same section, it is sufficient, in proceedings under them, that the affidavit follows their language. But subdivision 9 has not been construed by that court, and, in view' of its clear and explicit language, I think' the affidavit is defective. Motion sustained.