Barnhart v. Foley

11 Utah 191 | Utah | 1895

Bartoh, J.:

In this cause an appeal was taken from an order denying a motion to dissolve an attachment, which had been issued on September 6, 1893, at the suit of the plaintiff, to recover $3,000 on a promissory note which was secured by mortgage on real estate. The affidavit on which the writ of attachment was issued was in proper form, and stated, among other things, that the “mortgage has* without any act of the plaintiff, to whom it was given, become valueless,” and that it was not otherwise secured. This is one of the statutory grounds on which an attachment may issue. Comp. Laws Utah, 188,8 § 3309, subd. 1. On October 10, 1894, the defendant filed a verified motion to dissolve the attachment, but otherwise filed no affidavit in support of said motion. His counsel claim that the motion, having been verified, answers the double purpose of a motion and affidavit; that the motion presented an issue, because it traversed the essential averments in the affidavit of attachment; and that it was error to exclude parol testimony offered by the defendant in support of his motion. The motion, which the defendant relied on as an affidavit, was verified on information and belief, in the, same manner as pleadings are usually verified. While the affidavit of the .plaintiff was positive and certain in its terms, was made in the usual form of affidavits, and stated that the security had become valueless without any fault on his part, the alleged affidavit or motion of the defendant stated that the security was worth not less than $1,000. Both of these allegations are material, and present, the issues in the case. The former is- a positive declaration under oath; the latter, it must be assumed, was made on information and belief; so that, if it were conceded that the motion had the force and effect of an affidavit, still an allegation made on information and belief, in a proceeding to discharge an attachment, cannot prevail as against one stated as a positive fact. We think the verified motion was insufficient to discharge the attachment, and that the court did not- err in excluding parol testimony offered for that purpose, because, the defendant failing to support his motion by affidavit, the plaintiff was precluded from opposing the same by affidavit or other evidence. Comp. Laws Utah, 1888, § 3327. The defendant, having proceeded under the statute in a manner which prevented the plaintiff from supporting his affidavit in attachment by parol evidence, thereby precluded himself from, introducing such evidence in support of his motion, for it would be manifestly unjust, in such a proceeding, to grant the right to one party to introduce such evidence when such right was denied to the other. Under the proceedings there was presented by the issue simply a question of law, whether the verified motion of the defendant was sufficient to dissolve the attachment, which we think the court decided correctly. The judgment is affirmed.

Smith and King, JJ., concur.