Bowers v. Beck

RESPONSE TO PETITION EOR RE-HEARING.

Opinion by

Beatty, J.

The appellants in this case petitioned for a re-hearing, and based that petition on three grounds. These we will notice in the order in which they are presented in the petition. The first proposition is stated in these terms: “ The demurrer should have been sustained in the District Court, because the complaint in the cause does not allege when the cause of action sued upon in Bowers v. Atkinson arose. The complaint, in this case, should show per se that the cause of action in that was one in which the plaintiff could legally invoke the aid of a writ of attachment by a compliance with the preliminary requirement of an existing operative attachment law.”

*158In support of this proposition, it is urged that the amendments to the attachment law passed in 1864-5, totally abrogate the former attachment law, and as those amendments only apply to debts contracted after April, 1865, no attachment could issue to secure a debt created prior to that time. Reference is made to Section 17 of Article IV, and Section 2 of Article XVII of the Constitution, and several California cases, in support of this proposition.

Section 17 of Article IV, is in these words: “ Each law enacted by the Legislature shall embrace but one subject, and, matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be revised or amended by reference to its title only; but in such case, the Act as revised, or section as amended, shall be reenacted and published at length.”

Now, as the sections amended are reenacted in full and so appear on the statute book, we do not see what application this section can have, or what light it can throw on the Act as amended. The form of the Act is this: After giving the title of the Act and enacting clause, it proceeds as follows : Section 1. Section 120 of said Act is amended so as to read as follows.” Then follows in full the section as amended. After this, comes “ Section 2. Section 121 is amended so as to read as follows.”

Then follows in full the section amended. And in this way the Act proceeds until six sections of the former Act, which are designated by their numbers, are altered and reenacted.

Then comes the seventh and concluding section of the amendatory Act, which is as follows: “ Section 7. This Act shall take effect and be in force from and after the first (1st) day of April, eighteen hundred and sixty-five, (1865) and shall not be construed to have reference or application to any contract made prior to the time herein specified.” As the last section clearly provides that this Act shall have no reference or application to contracts made prior to April, 1865, the question arises whether any law on the subject of attachments does or can exist, affecting such contracts. If we look to the statutes of 1861, we find a law providing for attachments to secure debts in certain cases. Does that law still have any vitality ? In express terms, it has never been repealed. But certain sections of that law have been amended, and those amendments substituted for the former sections, so that in effect *159the former sections have been totally abrogated, from and after the time the amendments took effect.

The amendatory Act was approved and became a law on the fourth of March, 1865, but provides, by its own terms, it is not to take effect until the first of April following.

Now, it is clear that although the substitute sections passed in March, the old law remained in force until April.

But further, the new law provides it is not to be construed to have reference or application to any contracts made prior to the time herein specified.”

If the Legislature could provide that the new sections should not take effect for any purpose until nearly a month after the Act was passed, (and we think there is no question on that point) could it not provide that they should never go into effect, so far as to affect the remedy concerning former contracts ? We see no serious objection to such an exercise of legislative power. We think that the language used, taken in connection with the object of the amendment, clearly indicates that it was the intention of the Legislature that the law, as passed in 1861, should still be in force as regards all contracts made prior to 1865. The law of 1861 only gave the benefit of attachment when fraud was committed or contemplated. That of 1864-5 extends the benefit of attachment to a very numerous class of contracts where no fraud or unfairness is charged. It is hardly to be presumed that whilst the Legislature gave this harsh remedy against the honest debtor, it was the intention to entirely exempt the fraudulent debtor from its operation. The second section of Article 17, is as follows: “ All laws of the Territory of. Nevada, in force at the time of the admission of this State, not repugnant to this Constitution, shall remain in force until they expire by their own limitations or be altered or repealed-by the Legislature.” This does not mean if a Territorial law is altered in any of its sections, it shall entirely cease to have any validity, but simply that all such laws shall remain in force, except as repealed, and subject to such modifications as are effected therein by the Constitution or subsequent legislation. It does not affect the question under discussion.

We think the attachment law of 1861 remains in force as to debts contracted prior to April, 1865.

*160But even if that were not the case, the writer of this opinion is satisfied it would make no difference. The bond, by its recitals, admits that the goods to be released were under attachment, and I think that admission conclusive and not to be questioned, unless the bond was void or voidable for fraud, infancy, duress, or some other defense to be affirmatively shown.

The second point made is, that the bond was void for want of the proper stamps; that it is not a sufficient objection to say it “ was given in a legal proceedingbut that to dispense with the stamps, it should appear that it was “ required in a legal proceeding.” We are satisfied that, in the sense in which that word is used in the Revenue Laws of the United States and of the State, it was “ required in a legal proceeding.” Counsel for the appellants admit that the affidavit and undertaking, preliminary to the issuance of a writ of attachment, are required to be given in a legal proceeding, and are therefore exempt from stamp duties; but contend that a bond for the release of property attached is not required in a legal proceeding, because the defendant can just as well make his defense to the action while the attached property remains in the hands of the Sheriff as after he has had it returned to him on the execution of a proper bond. Therefore, such bond is not required in the legal proceeding.

We must confess that we fail to see the distinction. It is true, the defense to the action might be made without the return of the property. It is equally true the plaintiff could obtain his judgment without the issuance of his attachment. But in the case of plaintiff, the judgment obtained without the attachment might be valueless. On the other hand, if the defendant had a good defense, he might still be ruined in his business pending the litigation, for want of his property, which was tied up by attachment. We think where the Statute exempts bonds “ required in legal proceedings,” it is not restricted to those bonds without which a suit cannot be prosecuted or defended; but it refers to all bonds given in the course of a legal proceeding, and which may be required to give either party an advantage or privilege to which he would be legally entitled in such proceeding by executing a proper bond.

The third point made by petitioners is that this Court holds in its former opinion that the order dismissing the attachment was in evi*161dence for a special purpose, and if so, it was in evidence for all purposes, and so showed the attachment was discharged; and, therefore, that the action in this case could not be sustained.

In this assumption we think the petitioners are entirely wrong. Mr. Justice Brosnan, one of the members of the Court who concurred in the original opinion, expressly held no such proof was before this Court. The writer of this opinion, in several portions of the former opinion, expressed the idea, I think, very clearly, that defendants had not offered that order in evidence. The only expression in that opinion which could be construed differently is shown in the words italicised in the following quotation :

“ In other words, the defendants would seem to have claimed that the record in Bowers v. Atkinson should not be produced piecemeal ; but if offered, must be offered as a whole; and if the record, considered as a whole, failed to sustain plaintiff’s action, no part of it should be received in evidence. The statement does not show that there was an affirmative attempt, on the part of the defendants, to introduce this order in evidence on their side. At best, if offered in evidence by defendants, it was only for the special purpose of showing the other papers offered should be rejected.”

Now, we are not disposed to go into a verbal criticism to show whether the sentence italicised was, or was not, properly worded. But what we do say is this, that if a plaintiff in an action produces on the trial of a case a bundle of papers which were filed in another case, and selects out of that bundle certain papers, which he offers in evidence, and the defendants should object to admitting those selected papers unless the plaintiff would introduce all the papers in the bundle, this would not be equivalent to offering and introducing all the other papers in the bundle on the part of defendants.

Those other papers could not be held as introduced on behalf of defendants, unless they were specially offered and admitted by the Court. The fact that the Judge before whom the case was tried, may have read these latter papers before determining to admit those offered by the plaintiff, would make no difference. If one party offers a paper in evidence to which the other objects, the objecting party, as a matter of course, passes the paper to the Judge for inspection, in order that he may determine the validity of the objection. This might, perhaps, be said to be putting the paper in evi*162dence for a special purpose; that is, for the purpose of determining its validity as proof of facts set out in the paper.

But if the Court should reject the paper as not being competent proof of any fact in favor of the party offering, the party objecting could not resort to the same paper as proof of any fact in his favor. That is the case here. If the order dismissing the attachment was produced to the Court, it was only submitted for inspection to show the impropriety of admitting other papers, not to prove any distinct or affirmative fact for defendants, and cannot be considered as having been in evidence.

A re-hearing is denied.