13 Utah 265 | Utah | 1896
This action was brought November 13, 1895, to obtain judgment for an indebtedness evidenced by certain promissory notes, aggregating $21,500. At the time of bringing the suit, attachment proceedings were also instituted, and a certain stock of merchandise, belonging to the defendant corporation, was attached and taken into possession by the United States marshal on the following day. Two days thereafter said defendant corporation made a motion to dissolve the attachment, which was denied, and this appeal is from the order denying the motion.
The first contention is that the attachment was irregularly and improperly issued, counsel for the appellants maintaining that the grounds upon which it was based did not conform to the statute. If this contention be correct, then the attachment must be discharged, because an attachment proceeding can be upheld only when the law which authorizes it has been complied with. It is an extraordinary remedy, severe and harsh in its nature,
The next — and, we tMnk, the decisive — question is whether there is any proof which will support the allegation respecting the disposition of the property by the defendant Little, Boundy & Co. with intent to defraud its creditors. It was alleged in the complaint and in the affidavit upon which the attachment proceedings were based, substantially in the language of the statute, that said defendant had assigned and disposed of, and was about to assign and dispose of, its property, with intent to defraud its creditors; but otherwise there is no other allegation of fraud. The fraudulent intent was denied by affidavit of A. Boundy, the manager of Little, Boundy & Co.; and it was also denied that any creditor had been defrauded, or was about to be defrauded. These denials cast the burden of proof upon the plaintiff, at the hearing of the motion to discharge the attachment, to show, not only the existence of such facts as justified the issuing of the writ, but also that the charge as to the fraudulent acts and purposes was true. This the plaintiff attempted to do by filing the affidavit of Hyrum S. Young, but the affidavit is so vague and indefinite that it seems impossible to conclude therefrom that the defendant, Little, Boundy & Co. made, or was about to make, a fraudulent disposition of its property; and there is no extrinsic evidence in aid of the affidavit. Nor are there any specific acts set out in the complaint which tend to establish fraud. In the affidavit, reference is made, on information and belief, to a verbal agreement between the manager of Little, Boundy & Co., and one James T. Little, to the effect that if he would loan it a certain sum of money it would prefer his claim therefor, by deed of assignment, in the event of its being unable to pay it; and affiant
There is another statement in the affidavit on which the respondent relies, as follows: “Affiant further says, on information and belief, that the preference made in favor of the Utah Commercial and Savings Bank is fraudulent and void for the reason that said debt was an original debt owed by the said Little, Roundy & Co., and the rest and residue of said defendants in this case were also indorsers and co-makers of said note or notes that then represented the same.” It is then stated that afterwards the'bank' held the notes against the defendant Little, Roundy & Co., and, on partial payment, renewed them, and that on such renewal the names of the other defendants were omitted from the notes. When the notes were originally given, and when renewed and the names omitted, is not shown. Such renewal may have been made in good faith, while said defendant was solvent, before any assignment was thought of, so far as appears from the proof. Nor is it shown that either one of the defendants whose names were omitted from the notes was a director or managing agent of Little, Roundy & Co. It is evident that the proof did not present facts which justified the court in denying the motion to discharge the attachment, and yet the burden was upon the