The following opinion was filed December 31, 1869. Paine, J., having been of counsel for one of the parties, took no part in the decision.
Dixon, C. J.
I cannot agree with the learned counsel for the defendants in the construction which he seeks to establish for the act of March 14, 1864— [578]*578Laws of 1864, ch. 200. He contends that before the process of garnishment therein provided for can lawfully issue, there must he an affidavit made and filed in the proceeding, stating that the defendants in the principal action are indebted to the plaintiff in such action in a certain sum over and above all legal set-offs, etc. The substance of his proposition is, that the general provisions of sec. 2, ch. 130, R. S., respecting the fact of indebtedness and its nature and amount, required to be stated in an affidavit for a writ of attachment, are applicable to and should be required in the affidavit for the process of garnishment authorized by the act, or else that a separate affidavit to the same effect should be made and filed. Now, while I may fully agree with the counsel as to the propriety of requiring such affidavit, and even security to be given by the plaintiff, before the property and effects of the defendants should be thus summarily seized and sequestered in the hands of their debtors, and as to the wrong and injustice which may be done if such affidavit be not required, I still can find nothing in the act which would justify such construction. The argument may be a good one to address to the legislature, but not to this court. The language of the act is very plain, that in an action in the circuit court founded upon contract, the plaintiff, by making and filing the affidavit therein prescribed, shall be entitled to the process. And the words of the act upon which counsel relies, namely, the last paragraph of the second section, clearly refer only to that portion of chapter 180 “ relating to the subject of garnishee.” It is expressly so stated, and the other portion of chapter 130, relating to the process of attachment, properly so called, is not referred to nor made applicable under the act.
But the evils to be anticipated, and which counsel urges must result from this construction, will be greatly diminished, if not entirely removed,- provided the [579]*579second position taken by him be correct. That position is, that the court, without the aid of anjr express statutory provision, has a general power to control and regulate the proceeding upon summary process of this nature, so as to correct or prevent any abuse or misuse of such process, and that the defendant may, in some proper form, contest the truth of the grounds alleged by the plaintiff for obtaining it. I have examined the authorities upon it, and am satisfied that the position thus taken by counsel is correct and should be sustained. It has been so decided by the courts in a number of the states with respect to the process of attachment given by statute as a summary remedy in certain cases. The principle is equally applicable to the process of garnishment here given, which is in itself a kind of attachment. One of the earliest cases of the kind is Lenox v. Howland, 8 Caines’ R. 257, where the court said : “We do not think that because the statute points out a particular mode by which a supersedeas may be obtained, we are ousted of jurisdiction in this state of the case. We conceive that, from the general superintending power of this court, we have a right to examine whether the attachment has not improvidently issued, and, on this ground, review the order of the judge by whom it .was directed.” And this decision has been followed in that state in numerous instances both before and since the code of procedure. Ex parte Chipman, 1 Wend. 66; In the matter of Warner, 3 Wend. 424; McQueen v. Middleton Man. Co., 16 Johns. 6; Genin v. Tompkins, 12 Barb. 265; Morgan v. Avery, 7 Barb. 656. In the latter case it was said : “ So far as the attachment is concerned, it is process, and over its process the court has' necessarily a control, lest it be abused or perverted to purposes of oppression. That control is exercised, according to the course and practice of the court, by special motion. It required no provision of the code to confer this power and mode of redress. They are inherent in the [580]*580court, and unless taken away by statute, must of necessity be resorted to, and rendered available.” And to the same effect also are the decisions in Pennsylvania, New Jersey, Maryland, South Carolina, Tennessee, Kentucky, Indiana and Illinois, all of which will be found cited in Drake on Attachment, §§ 399 to 406, inclusive.
My opinion therefore is, that, upon the affidavits filed and motion made in behalf of the defendants, the proceedings here instituted should have been dismissed, unless they were sustained by additional affidavits or other sufficient written evidence produced on the part of the plaintiff. And in proceeding under this act, where no proof of indebtedness from the principal defendants to the plaintiff in the action is required before the process of garnishment can issue, I think the affidavits of the principal defendants, that they are not so indebted, ought to be esteemed as sufficient evidence upon which to dismiss the proceedings, until the contrary is shown at least by the affidavit of the plaintiff. The making of such affidavits by the defendants throws the burden of proof upon the plaintiff to show that they are so indebted; but whether in such case more is to be required of the plaintiff than the making and filing of his own affidavit of the indebtedness, is a matter which I hold in very considerable doubt. Certainly full proof of the claim of the plaintiff and of the defendant’s answer or defense thereto, is not to be gone into upon this motion to dismiss the proceedings against the garnishees; for that would be to try the merits of the original action in advance upon affidavits taken ex parte, which would be most irregular. Upon this point, therefore, I am inclined to hold that the controversy in this form should end when the plaintiff has made and filed his affidavit in clear and positive terms, showing that the principal • defendants are indebted to him, and the amount of such indebtedness over and above all legal [581]*581set-offs, and that such affidavit should be deemed suffi-. cient evidence of the fact of indebtedness to sustain the process of garnishment.
With regard to the other facts requisite to maintain the proceedings, that is to say, those specified in tfye act and to which the plaintiff must make affidavit in order to obtain the process, I think very much the same rule should prevail. The defendants having by affidavit explicitly denied the existence of such facts, it seems to me that it is incumbent on the plaintiff to establish them by proof in addition to his own affidavit. The remedy given by the act is, to say the least of it, a severe and harsh one, and should not be resorted to except in cases of actual necessity. The plaintiff, to obtain it, is not required to make oath to the facts themselves, but only that he has reason to believe, and does believe, that they exist. Upon this oath the plaintiff obtains the process, and when the facts are positively denied on oath by the defendants, and nothing appears to throw discredit upon their statements or to authorize greater credit to be given to the statements of the plaintiff, I think the burden rests upon the plaintiff to prove the facts with reasonable certainty by other credible evidence, and that if he fails in this, the process should be discharged.
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The following opinion was filed December 31, 1869. Paine, J., having been of counsel for one of the parties, took no part in the decision.
Dixon, C. J.
I cannot agree with the learned counsel for the defendants in the construction which he seeks to establish for the act of March 14, 1864— [578]*578Laws of 1864, ch. 200. He contends that before the process of garnishment therein provided for can lawfully issue, there must he an affidavit made and filed in the proceeding, stating that the defendants in the principal action are indebted to the plaintiff in such action in a certain sum over and above all legal set-offs, etc. The substance of his proposition is, that the general provisions of sec. 2, ch. 130, R. S., respecting the fact of indebtedness and its nature and amount, required to be stated in an affidavit for a writ of attachment, are applicable to and should be required in the affidavit for the process of garnishment authorized by the act, or else that a separate affidavit to the same effect should be made and filed. Now, while I may fully agree with the counsel as to the propriety of requiring such affidavit, and even security to be given by the plaintiff, before the property and effects of the defendants should be thus summarily seized and sequestered in the hands of their debtors, and as to the wrong and injustice which may be done if such affidavit be not required, I still can find nothing in the act which would justify such construction. The argument may be a good one to address to the legislature, but not to this court. The language of the act is very plain, that in an action in the circuit court founded upon contract, the plaintiff, by making and filing the affidavit therein prescribed, shall be entitled to the process. And the words of the act upon which counsel relies, namely, the last paragraph of the second section, clearly refer only to that portion of chapter 180 “ relating to the subject of garnishee.” It is expressly so stated, and the other portion of chapter 130, relating to the process of attachment, properly so called, is not referred to nor made applicable under the act.
But the evils to be anticipated, and which counsel urges must result from this construction, will be greatly diminished, if not entirely removed,- provided the [579]*579second position taken by him be correct. That position is, that the court, without the aid of anjr express statutory provision, has a general power to control and regulate the proceeding upon summary process of this nature, so as to correct or prevent any abuse or misuse of such process, and that the defendant may, in some proper form, contest the truth of the grounds alleged by the plaintiff for obtaining it. I have examined the authorities upon it, and am satisfied that the position thus taken by counsel is correct and should be sustained. It has been so decided by the courts in a number of the states with respect to the process of attachment given by statute as a summary remedy in certain cases. The principle is equally applicable to the process of garnishment here given, which is in itself a kind of attachment. One of the earliest cases of the kind is Lenox v. Howland, 8 Caines’ R. 257, where the court said : “We do not think that because the statute points out a particular mode by which a supersedeas may be obtained, we are ousted of jurisdiction in this state of the case. We conceive that, from the general superintending power of this court, we have a right to examine whether the attachment has not improvidently issued, and, on this ground, review the order of the judge by whom it .was directed.” And this decision has been followed in that state in numerous instances both before and since the code of procedure. Ex parte Chipman, 1 Wend. 66; In the matter of Warner, 3 Wend. 424; McQueen v. Middleton Man. Co., 16 Johns. 6; Genin v. Tompkins, 12 Barb. 265; Morgan v. Avery, 7 Barb. 656. In the latter case it was said : “ So far as the attachment is concerned, it is process, and over its process the court has' necessarily a control, lest it be abused or perverted to purposes of oppression. That control is exercised, according to the course and practice of the court, by special motion. It required no provision of the code to confer this power and mode of redress. They are inherent in the [580]*580court, and unless taken away by statute, must of necessity be resorted to, and rendered available.” And to the same effect also are the decisions in Pennsylvania, New Jersey, Maryland, South Carolina, Tennessee, Kentucky, Indiana and Illinois, all of which will be found cited in Drake on Attachment, §§ 399 to 406, inclusive.
My opinion therefore is, that, upon the affidavits filed and motion made in behalf of the defendants, the proceedings here instituted should have been dismissed, unless they were sustained by additional affidavits or other sufficient written evidence produced on the part of the plaintiff. And in proceeding under this act, where no proof of indebtedness from the principal defendants to the plaintiff in the action is required before the process of garnishment can issue, I think the affidavits of the principal defendants, that they are not so indebted, ought to be esteemed as sufficient evidence upon which to dismiss the proceedings, until the contrary is shown at least by the affidavit of the plaintiff. The making of such affidavits by the defendants throws the burden of proof upon the plaintiff to show that they are so indebted; but whether in such case more is to be required of the plaintiff than the making and filing of his own affidavit of the indebtedness, is a matter which I hold in very considerable doubt. Certainly full proof of the claim of the plaintiff and of the defendant’s answer or defense thereto, is not to be gone into upon this motion to dismiss the proceedings against the garnishees; for that would be to try the merits of the original action in advance upon affidavits taken ex parte, which would be most irregular. Upon this point, therefore, I am inclined to hold that the controversy in this form should end when the plaintiff has made and filed his affidavit in clear and positive terms, showing that the principal • defendants are indebted to him, and the amount of such indebtedness over and above all legal [581]*581set-offs, and that such affidavit should be deemed suffi-. cient evidence of the fact of indebtedness to sustain the process of garnishment.
With regard to the other facts requisite to maintain the proceedings, that is to say, those specified in tfye act and to which the plaintiff must make affidavit in order to obtain the process, I think very much the same rule should prevail. The defendants having by affidavit explicitly denied the existence of such facts, it seems to me that it is incumbent on the plaintiff to establish them by proof in addition to his own affidavit. The remedy given by the act is, to say the least of it, a severe and harsh one, and should not be resorted to except in cases of actual necessity. The plaintiff, to obtain it, is not required to make oath to the facts themselves, but only that he has reason to believe, and does believe, that they exist. Upon this oath the plaintiff obtains the process, and when the facts are positively denied on oath by the defendants, and nothing appears to throw discredit upon their statements or to authorize greater credit to be given to the statements of the plaintiff, I think the burden rests upon the plaintiff to prove the facts with reasonable certainty by other credible evidence, and that if he fails in this, the process should be discharged. Such is the rule laid down by the supreme court of Ohio in a similar case (Coston v. Paige, 9 Ohio St. 397); though a slightly different one is held in such cases in Louisiana. Simons v. Jacobs, 15 La. An. 425, and cases' cited. And the practice adopted by the court of Ohio, I also think a good one. The court say that undoubtedly, before a motion of this kind is brought on and heard, each party should be required to file his affidavits for the inspection of the other party, so that he may not be taken by surprise. The moving party is supposed to serve and file his affidavits on which the motion is based, with the notice of motion; and I think the court in-which the motion is [582]*582pending should by rule or order require the opposite party to produce and file his affidavits by a given day, and that thereafter the other party should have so many days in which to file his affidavits controverting any new facts stated therein. A practice like this would prevent surprise, and lead to a more fair and satisfactory trial and determination of the questions involved.
I am also of the opinion that the counsel for the defendants is right in the last position taken upon his brief. I think the court should, in cases of this nature, and especially where it is made to appear that the money or property in the hands of the garnishee is in danger of being lost, or the debt becoming worthless against him, direct the payment or delivery of the same to the sheriff, or clerk of the court, or other proper officer, by whom it may be safely kept and preserved for the benefit of the person ultimately entitled thereto. This is an order which may be properly made in any case; and particularly where the principal defendants ask it. I think there can be no doubt about the power of the court in such cases, whether it be expressly granted by statute or not.
For these reasons, I am of opinion that the order appealed from should be reversed. But as the matters of practice involved are entirely new, this being the first case under the statute in* question which has come before this court, I think it should be reversed and remanded without prejudice to the rights of the plaintiff to proceed, if he desires, to oppose the motion and to sustain the proceedings instituted by him, if the same ought to be, according to the practice here indicated.
Cole, J. concurring, it was
By the Court. — Ordered accordingly.