Opinion
07-12-1871
WRIGHT v. RAMBO.
J. T. Campbell, for the appellant. Jno. A. Campbell, for the appellee.
Absent, ANDERSON, J.
1. Upon a motion by the defendant to abate an attachment which had been sued out against his property by the plaintiff, the onus is on the plaintiff to show that the attachment was issued on sufficient cause, and he may, therefore, be required to introduce his evidence first.
2. Where a case is heard by the court without a jury, an appellate court will not reverse the judgment, though the court below may have erred in requiring the plaintiff to introduce his evidence first, In such a case, it is a matter of perfect indifference in what order the evidence is heard.
3. Upon a motion by the defendant to abate an attachment which has been sued out against his property by the plaintiff, the admissions and declarations of the wife of the defendant are not admissible in evidence for the plaintiff to prove the intention of the defendant to move with his property from the State, unless they were a part of the res gestæ of an act which was evidence, and which they might reasonably tend to explain.
4. Upon such a motion, the defendant's intention and declarations as to leaving the State after the date of the attachment, are not admissible as evidence.
On the 28th of June 1869, Robert Wright instituted an action of assumpsit against J. C. Rambo; and on the same day, upon an affidavit that Rambo was justly indebted to him to the amount at least of five hundred dollars, and that he believes that the said Rambo intends to remove his estate, or a material part thereof, out of this commonwealth, so that process of execution on a judgment in his suit, when obtained, will be unavailable, he sued out an attachment against the estate of Rambo; which was levied on certain real and personal property mentioned in the return.
At the next term of the court, held in September, Rambo moved the court to abate the attachment; and neither of the parties requiring a jury, the court after hearing the evidence rendered a judgment that the attachment be abated.
In the progress of the trial the plaintiff took several exceptions to the rulings of the court; and also excepted to the judgment; and all the evidence is set out in the bill.
Before any evidence was heard by the court the plaintiff insisted that the onus was upon the defendant to prove that the attachment had been improperly sued out, and should therefore be required first to introduce his testimony. But the court overruled this motion, and required the plaintiff to introduce his evidence first. And to this ruling the plaintiff excepted.
After the plaintiff had proved that the defendant, about two months before the suing out of the attachment, had offered to sell to the plaintiff his (the defendant's) lands, stating that he desired to sell out and remove from Virginia to the West, and also that about the same time defendant had on various occasions repeated to others that if he could sell his property at a fair value, he desired to remove from the State, proposed further to prove that Mrs. Rambo, the wife of the defendant, had on more than one occasion within two or three months next preceding the issuing of the attachment, announced to various persons, that her husband and herself intended to remove with their family from the State of Virginia to the West as soon as they could make ready, and were desirous to go before hot summer weather, if they could get off. But the defendant objected to the introduction of this testimony; and the court sustained the objection: and the plaintiff excepted.
The plaintiff further offered to prove that, since the issue of the attachment, the defendant had entertained an intention to sell off his property, and leave the State as soon as practicable, and had so declared, on more occasions than one, since the said attachment was issued. To which evidence the defendant objected; and the court sustained the objection: and the plaintiff again excepted.
It appears that, after the plaintiff had proved the defendant's proposition and declaration to him, as before stated, he further proved that defendant had, about the same time, said to another person, that if he could sell his property, he would leave the State and go West; and he also proved by defendant's brother, and another witness, that defendant had, prior to the 1st of May 1869, and about that time, declared to each of them, individually, that if he could sell out his property at a fair value, he would leave the State; qualifying the declaration to his brother, by saying he did not believe he could get a fair value for it.
The defendant proved, by his own evidence as a witness, that, at the time of suing out the attachment, he entertained no intention of removing himself or his property beyond the limits of the State of Virginia; and further, that according to his present recollection, he had neither entertained an intention to remove his property, nor declared such intention, as proved by the other witnesses. That prior to the month of May 1869, when he repaired his mill, he had designed, if he could judiciously sell his property, to remove from the State; but had no such intention afterwards. And he further proved by two witnesses, with whom he is and has been in regular and intimate intercourse, that they had never heard him, at the time of the suing out of the attachment, or previously, talk of removing himself or his property from the State. Upon this evidence the court rendered the judgment abating the attachment: the plaintiff thereupon excepted, and applied to this court for supersedeas; which was awarded.
J. T. Campbell, for the appellant.
Jno. A. Campbell, for the appellee.
OPINION
MONCURE, P.
The court is of opinion that the Circuit court did not err in refusing to admit evidence of the conversations and declarations of the wife of the defendant in regard to his removal from the State, as mentioned in the first bill of exceptions. The case comes within the general rule, that a wife's declarations and admissions are inadmissible evidence against her husband, and not within any exception to that rule. The conversations and declarations which were offered in evidence in this case were not admissible as part of the res gestæ , for they did not accompany any act which was itself evidence and which they might reasonably tend to explain.
The court is further of opinion, that the Circuit court did not err in excluding evidence of defendant's intention and declarations as to leaving the State since the date of the attachment, as mentioned in the second bill of exceptions. The fact in controversy is the existence, at the time of suing out the attachment, of an intention on the part of the defendant to remove out of the State. The existence of such an intention formed afterwards is not material, and not a sufficient ground for suing out an attachment. Declarations of the defendant made since the date of the attachment, as to his then existing intention to remove from the State, are not, in themselves, evidence tending to prove the existence of such an attention at the time of suing out the attachment. They might, perhaps, be made so recently after that time, or have connection with, or make such reference to it as to tend to show the existence of such intention at that time; and thus become admissible evidence. But then the special circumstances making them admissible, must be affirmatively shown and set out in the bill of exceptions by the party who offers the evidence; otherwise, they will not be presumed by the appellate court to have existed.
The court is further of opinion, that the Circuit court did not err in refusing to require the defendant to introduce his testimony first, and requiring the plaintiff to introduce his evidence first, as mentioned in the third bill of exceptions. The Code, chapter 151, § 22, page 650, declares that " the right to sue out any such attachment may be contested; and when the court is of opinion that it was issued on false suggestions, or without sufficent cause, judgment shall be entered that the attachment be abated." The attachment in such a case as this is issued on ex parte affidavit, as prescribed by the Code, ch. 151, § 2. But the defendant may contest the right to sue it out, as above mentioned. In other words, he may deny the right to sue it out. And thus there is an issue made up between the parties, on the question of right. Of that issue the plaintiff has the affirmative, and the defendant the negative; and the general rule is that the party having the affirmative must begin, and especially when such party is the plaintiff.
But the court is further of opinion, that even if the Circuit court erred in this respect, it was not an error to the prejudice of the plaintiff, or for which the judgment ought to be reversed. The case was tried by the court without the intervention of a jury. All the evidence on both sides was heard, and the order in which it was heard, seems to be a matter of perfect indifference.
The court is further of opinion, that the Circuit court did not err in abating the attachment, as mentioned in the fourth and last bill of exceptions. The preponderance of evidence, all of which is set out in that bill, is decidedly in favor of the defendant. But, even if there had been a preponderance the other way, yet the bill, being a certificate of evidence merely, and not facts, and the evidence being conflicting, and the defendant's evidence, if true, proving that at the time of the suing out of the attachment he did not intend to remove from the State, the court would have to regard the bill as a demurrer to the evidence, and to affirm the judgment, according to the doctrine settled by this court in the cases of Mitchell, & c. v. Baratta, & c.; and Same v. Riviera, & c., 17 Gratt. 445.
The court is, therefore, of opinion that there is no error in the judgment; and that it be affirmed.
JUDGMENT AFFIRMED.