Brown v. Blanchard

Campbell, 0. J.

In this ease a circuit court commissioner, on application to dissolve an attachment, having heard the testimony and allegations for and against the application, came to the conclusion that Blanchard was not, at the time the attachment was sued out, about to dispose of his property with intent to defraud his creditors, and dissolved the attachment. On this decision certiorari is brought.

We are not authorized on certiorari to review questions of fact; and inasmuch as the burden of proof is on the attaching creditor to satisfy the commissioner that the writ was well founded, the decision of the commissioner on the testimony iq not open to revision when *791 he has fully passed upon it. Macumber v. Beam, 22 Mich., 395 ; Smoke v. Jones, 35 Mich., 409 ; Jackson v. People, 9 Mich., 111 ; Hyde v. Nelson, 11 Mich., 353 ; Cicotte v. Morse, 8 Mich., 424 ; Berry v. Lowe, 10 Mich., 9 ; Linn v. Roberts, 15 Mich., 443 ; Welch v. Bagg, 12 Mich., 41 ; McGraw v. Schwab, 23 Mich., 13 ; Overpack v. Ruggles, 27 Mich., 65 .

Moreover, it appears from the record that before the commissioner no claim seems to have been made that there was no testimony to be considered in favor of respondent, and the affidavit for certiorari does not rest on a total want of testimony, but on an erroneous finding; and in this respect it resembles the ground set up in McGraw v. Schwab, which was held to present no question of law.

There was no error in allowing defendant to be examined as to his intentions, or in receiving evidence that plaintiff had been secured by collaterals. This testimony was relevant, and the commissioner was therefore right in receiving it.

The proceedings must be affirmed with costs.

Marston and Graves, JJ. concurred. Cooley, J.

I agree with my brethren that on questions of the weight of evidence we cannot review these proceedings. But I do not agree that this case depends at all on disputed facts. Blanchard was a witness on his own behalf to disprove the prima facie case made against him, but instead of disproving it, he established it beyond dispute or cavil. He testified to his refusal to pay or secure the demand of the plaintiff, and .to his proceeding thereupon to cover up his property by mortgages for amounts in excess of the sums owing by him. Not the slightest attempt is made by him to explain or excuse those mortgages: there is no dispute concerning them on the facts, and they stand as conveyances whose fraud is unquestioned and unquestionable.