In Re Keene

CONREY, P. J.

Habeas corpus.

The petitioner is in custody of the sheriff of Los Angeles County pursuant to an order of arrest issued in accordance with certain provisions of the Code of Civil Procedure. Section 479 of that code provides that the defendant may be arrested in certain cases, one of which is “when-the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for- which the action is brought.” Section 481 provides that an order for the arrest of the defendant may be made whenever it appears to the judge, by the affidavit of the plaintiff, or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section 479. “The affidavit must be either positive or upon information and belief ; and when upon information and belief, it must state the facts upon which the information and belief are founded.”

The commitment presented with the sheriff’s return shows that a judge of the superior court, in an action against the petitioner herein and one other person, ordered the arrest of the petitioner. In that order it was stated that it appeared to the judge from the verified complaint on file and from the affidavit submitted on the part of the plaintiff that a sufficient cause of action exists against the defendants, and that the ease is one of those mentioned in section 479 of the Code of Civil Procedure, and that the defendants and each of them have been guilty of fraud in contracting the debt for which the action is brought. The petition for the writ contains copies of the affidavits. One of those affidavits states that a copy of the complaint is thereto annexed and made a part thereof. The petition does not negative the fact that a copy of the complaint was annexed to the original affidavit; therefore we presume that the complaint was before the judge

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when he made his order of arrest and that it does state a cause of action. The affidavits also directly show that the defendants purchased from the plaintiff merchandise, to wit, certain quantities of butter, of a value exceeding three thousand dollars, which was delivered to the defendants; that the_ defendants have not paid the purchase price or any part thereof, and that the same is due, owing, and unpaid. The affidavit of Axel Whitefield, a recent employee of the defendants, states that the defendants Maurice Chaney and Albert Chaney have been doing business under the name of Keene Butter Company and have represented themselves in all business transactions as Maurice Keene and Albert Keene, respectively ; that Maurice Chaney was convicted of using the United States mails to defraud, in the district court of the United States in the city of San Francisco, California, in 1912, and sentenced for a term of four years, of which term he served three years and one month, and was released from the penitentiary at McNeil’s Island on or about November 1, 1915; that the defendants have been guilty of fraud in contracting their indebtedness with the plaintiff, in that the defendants represented themselves to be reputable business men, whereas in fact the defendant Maurice Chaney was a man of bad repute and doing business under an assumed name, “and each of said defendants assumed said fictitious name in order that they might defraud plaintiff herein, and other creditors”; that defendants have fraudulently concealed, removed, and disposed of certain of said butter to prevent its being found or taken by the sheriff in any action commenced by the plaintiff herein, or any of the other creditors of said defendants; that defendants stated to affiant that they would not deposit any further money in the bank for the reason that they were afraid that plaintiff herein would attach said money, and that said defendants would keep their money in other places.