5 S.D. 594 | S.D. | 1894
On the 28th day of January, 1891, Jennie G. Drake made a general assignment for the benefit of creditors to the plaintiff and respondent, and, on the 6th day of February of that year, Oliver C. Wyman et al, brought suit against her to recover money due on account, and caused the defendant and appellant, as sheriff of Kingsbury county, to levy an attachment upon the assigned goods and chattels, as the property of said J ennie G. Drake. Defendant waived her right to answer, and by stipulation of parties a judgment for the full amount claimed was entered against her on the 16th day of the following march; and, according to the directions of said judgment, the attached property was sold on execution, and the proceeds thereof were applied in satisfaction of the same. This action .was instituted by the assignee against the sheriff to recover the valu® of the property so taken and sold on execution. Upon a verdict directed for plaintiff, a judgment for $2,043.11 was entered and the defendant appealed therefrom.
Such rights as respondent may have rest upon a deed of assignment that was offered on the part of the plaintiff, and received in evidence, which reserves $750 as exempt from levy and sale under the laws of this state relating to an insolvent debtor who is the head of a family; and counsel for appellant maintain that the deed is void upon its face, as it neither shows that the assignor was insolvent, nor that she was the head of a family, and therefore authorized to make an assignment, and reserve such an amount as exempt, under Laws 1890, c. 86, § 2.
Although the numerous rulings of the court in rej ecting appellant’s evidence relating to the fraud of the parties and the sufficiency of the deed are assigned as error, we are disposed to adopt the view advanced in respondent’s brief, and conclude that, so far as this appeal is concerned, the case must stand or fall upon the affidavit for an attachment, the contested parts of which are as follows: “That defendant has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete her property, with intent to defraud her creditors. Affiant further states that, for and on account of said merchandise sold and delivered as aforesaid, defendant is justly and truly indebted to plaintiffs in the further sum of $93.36, which sum is' not yet due, but that nothing but time is wanting to mature the same, and that said defendant has sold, conveyed, or otherwise disposed of her property, with the fraudulent intent to cheat and
Section 4995 of the Compiled Laws authorizes the issuance of an attachment upon an affidavit stating — “First, that a cause of action exists against such defendant, specifying the amount of the claim and the grounds thereof; and second, that the defendant is either a foreign corporation, or not a resident of this state, or has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent; or, third, that the debt was incurred for property obtained under false pretenses; or, fourth, that such corporation or person has removed, or is about to remove, any of his or its property from the state with intent to defraud his or its creditors; or, fifth, has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his or its property with the like intent, whether such defendant be a resident of this state or not. ” Section 5014 authorizes an attachment creditor, in certain cases, to bring an action upon a claim before it is due, and the first ground for an attachment mentioned therein is as follows: ‘ ‘When a debtor has sold, conveyed, or otherwise disposed of his property with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts.” It will be observed in this case that the respective causes or grounds for an attachment are stated in the language of subdivision 5 of section 4995, and the first subdivision of section 5014; and we are disposed to believe that each group or
The object of the legislature was to afford to creditors a remedy that may be made effectual against debtors who may be disposed to be dishonest, without requiring such creditors to swear to a fixed state of facts, involving nice distinctions, concerning which, in most instances, no man could be absolutely positive, and in relation to which the gravamen would, in any case, be the same. Fraud worships at the shrine of secrecy, and, in the nature of things, a creditor is, in many instances, unable to say definitely, upon his oath, whether a debtor is about to assign, dispose of, or secrete his property with intent to defraud his creditors, or whether he has at that moment done so with a like intent. If the affidavit before us contained more than one of the statutory subdivisions and groupings-of causes or grounds for an attachment, separated by the disjunctive conjunction “or,” we should without hesitation, regard such affidavit fatally defective, and thus be able to affirm the