Ex parte Yonetaro Fkumoto
Before: Fleet
Synopsis
Abbest in Civil Action—Insufficient Affidavit—Absence of Jurisdictional Facts.—An affidavit for arrest in a civil action, stating merely that the defendant had absented himself from his place of business, had given directions to pack the goods at his place of business, and that part of the goods so packed were removed to places unknown to the plaintiff, that defendant had received a large sum of money for insurance on goods destroyed by fire, and had sought to convert his goods by auction sales into cash, and was possessed of a large sum of money in cash, and was concealing himself, that plaintiff had ■sought him and could not find him, and that he intended to, and if not prevented by the court would, escape from the state of California with said money, and thus defraud and cheat plaintiff, does not state jurisdictional facts sufficient to justify an arrest, either upon the ground that defendant was about to depart from the state with intent to defraud his creditors, or upon the ground that he had removed or disposed of his property, or was about to do so, with intent to defraud his creditors.
Id. —Fbaubulent Intent Must Distinctly Appear—Departure from Language of Statute.—The intent of the debtor to defraud his creditors must distinctly appear; and the statement that defendant “will escape from the state,” and thus “defraud and cheat the plaintiff,” is not the equivalent of the statutory requirement that he “is about to depart from the state with intent to defraud his creditors.” When the language of such a statute is departed from, the party must, at his peril, employ words of equivalent import, and a failure in this respect is fatal.
Id.—Statement of Conclusion ob Belief without Proof.—The statement that the defendant “will escape from the state,” etc., is the mere statement of the conclusion or belief of the affiant, and without the statement of the facts from which such conclusion is drawn, or upon which the belief is founded, is not evidence upon which the court is at liberty to act_li>-sutií-a-Ca_se.
Id.—Removal of Pbopebty—Facts 'Showing Fraudulent Intent Must Appear—Removal Must Prevent Attachment.—An affidavit for arrest on the ground that defendant has removed or disposed of his property, or is about to do so with the intent to defraud his''creditors, must not merely assert fraudulent intent in general terms, but'must state specific facts, from which the court may deduce the intent to defraud; and it must further show that the defendant was taking, or was attempting to take, the property without the reach of the process or jurisdiction of the court either territorially, or by .concealing or disposing of them where they can not be subjected to attachment; and where the affidavit neither proves a fraudulent .intent, nor necessarily shows a removal of the property beyond the reach of an attachment, it is insufficient.
VAN FLEET, J. Application for discharge on habeas corpus. The warrant under which petitioner is held in restraint was issued in supposed accord with the provisions of the Code of Civil Procedure authorizing the arrest of the defendant in a civil action. Those provisions permit such arrest “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 ease is one of those mentioned in section 479.” (Code Civ. Proc., secs. 478, 481.) In this case the order of arrest was made by a judge of the superior court of the city and county of San Francisco, in an action brought in that court by one G. T. Marsh, as plaintiff, against petitioner as defendant, and was based upon an affidavit of the plaintiff Marsh, intended to bring the case within those provisions of section 479 which authorize the arrest: “1. In an action for the recovery of money or damages on a cause of action arising upon contract express or implied, when the defendant is about to depart from the state with intent to defraud his creditors; .... 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors.”
The discharge is asked upon the ground that the facts stated in the affidavit did not authorize the order of arrest, and that therefore the order was void for want of jurisdiction.
[318]Petitioner first objects that it is not made to appear by the affidavit that a cause of action existed against petitioner in the ■action in which the proceeding is had. Respondent tacitly concedes that the facts stated in the affidavit do not in themselves ■show the existence of a cause of action, hut the affidavit refers to the verified complaint on file, and “makes the same a part ■of this affidavit”; and it is contended that the complaint may be thus referred to to help out the defects in the affidavit in this respect, and for such purpose is to be regarded as a part ■of the affidavit. Against this contention petitioner relies upon the early case of McGilvery v. Morehead, 2 Cal. 607, where it was explicitly held that the affidavit must itself show the facts relied on by positive averment, and that it is not sufficient to refer to the complaint, or to any other paper, to show what the affidavit should itself disclose. On the other hand, respondent .refers us to the case of Ligare v. California etc. R. R. Co., 76 Cal. 611, which it is claimed in effect overrules McGilvery v. Morehead, supra, and to several cases from Hew York, from which our statute is borrowed, sustaining his contention. We do not find it necessary, however, to determine this question, since we are satisfied that there is a material lack in the affidavit in respect to the other jurisdictional facts required to bring the case within the statute.
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