Foley-Wadsworth Implement Co. v. Porteous, 8 S.D. 74

Foley-Wadsworth Implement Co. v. Porteous

8 S.D. 74 | S.D. | 1895

Kellam, J.

This is an appeal from an order discharging an attachment. The attachment was issued on an affidavit alleging that defendant “has sold, conveyed and disposed of his *76property with a fraudulent intent to cheat and defraud his creditors, and to hinder and delay them in the collection of their debts,, and. that debtor is about to remove his property with intent and to the effect of hindering and delaying plaintiffs in the collection of their debts, and that said debts were incurred for property obtained under false pretenses. ” Although defendant claims otherwise, we think the affidavit of the defendant, upon which the motion to discharge was made, sufficiently met and put in issue every allegation of the attachment affidavit. It is true that, as to the allegation that he ‘ ‘is about to remove his property with the intent and to the effect of hindering and delaying plaintiffs in the collection of their debts,” his denial is of any intent of “hindering and delaying.’’ It would, doubtless, have been better to use even these words dis-junctively, but they are nearly synonymous. They are given as synonyms in Webster’s dictionary. There is not the same cogent reason for requiring these words to be used alternatively as in the case of either or both of them in connection with the word “defraud” for the intent to hinder and delay is distinctly other and different from the intent to defraud. There may be an intent to do the former withouf any intent to do the latter. Crow v. Beardsley, 68 Mo. 439. We do not mean to be understood as announcing as a rule that this alone ought always, or even generally, to beheld as a sufficient traverse, for we should rest our decision of this case in respect to this charge, as the trial court probably did, not alone upon this particular denial, but upon all the evidence upon which the motion to "discharge was heard. In addition to the affidavits, the defendant was examined and cross-examined; and his evidence, with other.oral testimony, is brought to us by bill of exceptions; and it all impresses us that the trial court was right in holding that the plaintiff was not entitled to an attachment upon the facts shown.

There is another view of this case which seems entitled to notice. Plaintiff’s affidavits, upon which the attachment was *77issued, alleged the debt for which the action was brought to be due. In such case the removal of property with the “intent of hindering and delaying” creditors is not made a statutory ground for attachment. Comp. Laws, Sec. 4995. It is only when the action is brought on a claim not due that the plaintiff may have an attachment on the ground that his debtor is about to remove his property with the intent of hindering and delaying him in the collection of his debt. Comp. Laws, Sec. 5014. If, then, the allegation already discussed was not ground for attachment in this case, failure to properly deny it was not material. The order of the circuit court discharging the attachment is affirmed.