5 Wyo. 510 | Wyo. | 1895
Lead Opinion
The plaintiff in error, as plaintiff below, obtained an order of attachment against the defendant in error, alleging certain statutory grounds therefor in the affidavit for attachment.
Subsequently a motion was made to discharge and dissolve the attachment, and upon a hearing before the judge of the district court in vacation the motion was sustained and the attachment discharged as to all of the property attached. The bill of exceptions states that the ruling of the judge was excepted to by the plaintiff in error at the time it was made, but there is no such statement in the order discharging the attachment, or elsewhere in the record. Nowhere does it appear, either in a journal entry or in the bill of exceptions, that time was asked or allowed within which to reduce the exceptions to writing or to prepare and present the bill of exceptions, or that the bill was allowed within the time given by the court or judge for such purpose. The bill was allowed apparently at the term of court following the dissolution of the attachment, but the order of allowance which appears in the bill of exceptions does not state that it was allowed within a time fixed by the court. This, we think, is fatal to the bill. The record must show the order giving the time beyond the term, or if not made in term time, within the time fixed by the judge in vacation in which to present the bill, and the order must appear by an entry of record. A recital in the bill that time was given is not sufficient. If the bill be presented
It is urged that the evidence upon the hearing- before the judge upon the motion to dissolve -the attachment was sufficient to sustain the attachment and that the judge erred in
2. But we have examined the testimony taken upon the hearing of the motion to dissolve the attachment, both oral and in the form of affidavits, and we are unable to say that the decision of the court was incorrect. A court of error, before reversing the decision of an inferior court upon a question of fact involved in a motion to discharge an attachment, should be satisfied that such decision was clearly erroneous. Harrison v. King, 9 O. S., 388. The second ground of attachment is based upon the pending disposition of the property of the debtor by it with intent to defraud its creditors. The only testimony that can be claimed as tending to show this is an offer to mortgage the property to plaintiff in error, including in the mortgage the claim of another ■ creditor, not yet due, which it was stipulated should be paid after the debt due the plaintiff in error was discharged. This showing is not a fraud of the rights of other creditors, and is more favorable to the defendant in error than to the complaining party. The first and remaining ground of attachment that the defendant fraudulently contracted the debt, is based on certain statements alleged to have been made to the commercial traveler of the plaintiff in error at the time the first bill of goods was sold to defendant in error, that the corporation had a capital stock of $5,000.00, fully paid up, and owed practically no debts, or that there were no debts.of importance. The.evidence on this point was conflicting, as the statements of the commercial traveler were denied by three witnesses for the defendant in error, more or less, directly and positively by the member of the corporation, employed as its book-keeper, who was the one who ordered the goods. The fact appears that the leading incorporators, Lilly and Culver, of the .Casper Drug Company, the defendant in error, took each 77 shares of the capital stock of the corporation in payment of the
The same rule was enforced in Stiff v. Fisher, 85 Tex., 556, and in Stiff v. Fisher, 2 Tex. Civ. App., 346. For the reason that the debt can not be said to be fraudulently contracted as a whole, and because this court can not disturb the findings below upon the conflicting evidence as to the first item of the debt, particularly where the preponderance of the evidence shows that such portion of the debt was not fraudulently contracted, the order discharging the attachment would have been affirmed if the bill- of exceptions was a proper one and time had been asked within which to prepare and present it to the court or judge for allowance.
3. An objection is made that no proceedings in error could have been instituted in the case, as the order diseharg-
4. It is contended that the affidavit for attachment is not sufficient, as it states that the debt was fraudulently contracted without showing in detail the facts relating thereto. But we think that the great weight of authority is in favor of sustaining the attachment where the grounds therefor are stated in the language of the statute or in equivalent terms. Hockspringer v. Ballenberg, 16 Ohio, 304; Emmitt v. Yeigh, 12 O. S., 335; Coston v. Paige, 9 id., 397; Harrison v. King, 9 id., 388; Creasser v. Young, 31 O. S., 57; Tallon v. Ellison, 3 Neb., 63.
The ground of the statute is expressed in positive terms, and the criticism of Mr. Justice Saufley, in First National Bank v. Swan, 3 Wyo., 372, does not apply, as in that case the applicant for attachment stated, under the permission of our statute, that he had good reason to believe and did believe, that the ground of attachment existed, while in the case before us the ground of attachment is stated positively and not upon belief.
Owing to the defect in the bill of exceptions, and in the absence of any showing in the record that time was asked and allowed in which to reduce the exceptions to writing for allowance, the proceedings in error are dismissed.
Dismissed.
Rehearing
The proceedings in error in tbis case were dismissed for the reasons stated in the opinion. Plaintiff in error now moves for rehearing; the only grounds therefor going to such dismissal; and counsel urges that the proceedings should not have been dismissed upon the grounds so stated.
Notwithstanding that the court concluded that the omissions. in the record required a dismissal, the testimony and facts in the case were examined and commented on in the former opinion, and we then announced that we were unable to say that the decision of the district court was incorrect, and that had the bill of exceptions been a proper one, the order appealed from would have been affirmed. It is therefore manifestly unnecessary to review our action in respect to the matters now complained of. Motion for rehearing denied.