The record-union., 1898-12-10
AFFIDAVIT WAS DEFECTIVE.
JUDGE HUGHES ORDERS MRS.
GIBSON DISCHARGED.
He Is OF Opinion the Court Never
Acquired Jurisdiction to Order
Her Arrest.

Acquired Jurisdiction to Order
| Her Arrest.
| Superior Judge Hughes yesterday
handed down a decision in the case OF
Mrs. e. G. York against her son, j. A.
Gibson, and his wife, Edith Gibson, or
dering the discharge of Mrs. Gibson, on
the ground that the affidavit accompa-
nying the order of arrest did not show
the tendency Of plaintiffs action, and
did not contain an affidavit of merit.
1t was the opinion Of the court that the
court had not acquired jurisdiction to
issue the order of arrest, and that she
was entitled to her discharge.
| Attorney c. III. Dunn, for the plaintiff,
after the opinion had been read by the
court, said the affidavit had been drawn
hurriedly, and was for that reason
probably defective. He requested that
the order be withheld, to allow him
time to file new application and
affidavit for the arrest of Mrs. Gibson.
| Attorney Eugene Aram, for the de-
fendant, said he desired to be heard on
the matter before the order for rearrest
was issued, and the court allowed him
five days in which to prepare his objec-
tions.
The decision Of Judge Hughes briefly
reviews the entire case. 1t follows:
On the 21st day of August, 1897, the
plaintiff commenced an action against
the defendants for the recovery of $21,-
| oU, alleged to be due, owing and un-
paid, from the defendants to the plant
III, and among other things alleged the
existence of confidential relations be-
tween the plaintiff and defendants, and
the obtaining of the money by the de-
PENDANTS from the plaintiff through
fraud. The complaint, in the opinion
of the court, states a good cause Of ac-
| ton.
Thereafter, and on the 4th day of
March, 1898, the intervenor was per-
mitted to file a complaint wherein it is
alleged that said money was the prop
erty of his intestate at the date of the
latter's death.
AT the time Of the filing of the orig
inal complaint the plaintiff also filed
an affidavit for the arrest Of the defend
ants, under the provisions of sections
l4iS ct seq., G. @. P, and thereupon the
court issued an order for the arrest of
the defendants. The defendant J. A.
Gibson, has not been served with pro-
cess, nor taken into custody, under
said order Of arrest The defendant
Edith Gibson was, however, arrested
under said order, and admitted to bail
She now applies to the court for an or
der setting aside and vacating said or
der Of arrest, and granting her dis
lPhqrpa fharafr6rY, fbo{
plaintiffs affidavit, upon which the or
der of arrest was issued, was and is
insufficient to confer jurisdiction upon
the court to grant the order of arrest
The plaintiff denies this contention and
insists that said affidavit is sufficient to
bring the case within the provisions of
subdivisions 1 and 4 Of section 479, c.
&c. P, which read as follows:
''419. The defendant may be arrested,
as hereinafter prescribed, in the follow
ing cases: /. In an action for the re-
covery 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.
"4. When the defendant has been
guilty of fraud in contracting the
debt or incurring the obligation for
which the action is brought; or in CON
cealing or disposing of the property
for the taking, detention or conversion
of which the action is brought"
Section 4S1, c. c. P, provides: "The
order 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 men
toned in section 479 The affidavit
must be either positive or upon infor-
nation and belief; and when upon in
formation and belief, it must state the
facts upon which the information and
belief are founded. If an order of ar
rest be made, the affidavit must be
filed with the clerk of the court
An examination of the section of the
code last quoted discloses that the order
of arrest can be issued only upon an
affidavit made by the plaintiff, or some
other person on plaintiffs behalf, which
affidavit must show that sufficient
cause of action exists in favor of the
plaintiff, and against the defendant, in
the suit in which it is sought to obtain
the arrest of the defendant; and. fur
thermore, that such suit is of the char
acter mentioned in section 479, c. C. P.
These facts must appear in the aff1da-
Wit, in either positive terms or upon
the information and belief Of the affi-
ant; and If the same are stated upon
the information and belief of the affiant,
then the affidavit must contain a state
ment of the facts upon which such in
formation and belief is founded If the
| affidavit in the case at bar is deficient
in any of these requirements, then, In
the opinion of the court, Jurisdiction
was not acquired to issue the order of
arrest. This conclusion is reached,
first, because section 4S1, c. G. P,
which we have heretofore quoted, re-
quires that the jurisdictional facts must
be made to appear "by the affidavit of
the plaintiff, or some other person" The
statute is plain and explicit as to the
manner in which the jurisdictional facts
must be made to appear to the court,
and does not leave the court at liberty
] to ascertain the facts from the COM
plant, or from any other source what
ever.
The precise question here involved
has twice been before the Supreme
Court Of this State-first, in the early
case Of McGilvery VS.. Moorhead ct al,
reported in the I'd Cal, COZ. The Sec
ton of the Practice Act of the State of
California in force at the rendition of
the decision in that case contained prac-
tically the same provisions as are now
contained in the sections of the Code
upon the same subject. In that case,
the plaintiff, in his affidavit, referred
to his complaint and made it a part of