Morris v. Schwartz

¶1specially concurring: The constitutionality of the Act in question has been upheld by the Supreme Court. The Legislature, alone, has the power to determine whether a proposed Act is wise or unwise. We have no right to condemn or criticise this Act because we may think that.the Legislature should have provided therein that a defendant be “heard in opposition to the application” and to have “a hearing on his objections” to the “affidavit filed in support of the application as to the truth of the facts set forth in said affidavit”; nor have we the right, in interpreting this Act, to read into it provisions that, in our judgment, would tend to make the proceedings under the Act more equitable as between the parties. It would be a sufficient answer to Mr. Justice Friend’s argument that in passing upon the affidavit for a body execution the trial court had the right to consider the garnishment proceeding and the effect of the same, to say that there is nothing in the record to show that the alleged fraudulent chattel mortgage set up in said affidavit was an issue in the garnishment proceeding. Moreover, Mr. Presiding Justice Sullivan has held that the statute imposed upon the trial court the duty of determining, as a matter of law, the sufficiency of the affidavit, and if this holding is sound — and I entertain no reasonable doubt that it is — the trial court, in passing upon the sufficiency of the affidavit, had no right to consider the garnishment proceeding nor to permit the defendant to contest “the truth of the facts set forth in said affidavit.” If we were to hold that the defendant had the right to file objections to the application and to have “a hearing on his objections” “as to the truth of the facts set forth in said affidavit,” in my judgment, we would be reading into the Act provisions that are not contained therein and that would materially change the plain purpose and intent of the Act. I am satisfied’ that Mr. Presiding Justice Sullivan’s interpretation of the language of the Act is sound, and I concur in his opinion.