48 Neb. 866 | Neb. | 1896
The Geneva National Bank brought this action in the court below against Silas Bailor and A. Bailor upon
The affidavit for attachment was made by A. O. Taylor, cashier of plaintiff’s bank, and sets up four grounds:
1. The defendant, Silas Bailor, is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent of defrauding his creditors.
2. That he is about to convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors.
3. That he .has assigned, removed, or disposed, or is about to dispose of, his property, with the like fraudulent intent.
4. That the debt for which suit was brought was fraudulently contracted or incurred.
The record reveals that the motion to discharge was heard upon proofs in the form of affidavits, consisting of the affidavit of Silas Bailor filed in support of his motion, and the affidavit of A. O. Taylor, offered by plaintiff in resistance thereof. The defendant, in his motion and affidavit, expressly and specifically denied each averment of fraud contained in the original affidavit on which the attachment was obtained. The burden, therefore, was upon the plaintiff to sustain some one of the grounds of attachment by a preponderance of the evidence.
It appears that Silas Bailor, in 1893, sold his farm to Arthur Atherton, the garnishee herein, a written contract to that effect at the time being entered into. By the terms of the agreement, between $2,000 and $3,000 of the consideration was payable on August 1, 1893. At the time the contract of sale was made Bailor ‘was indebted to plaintiff for money borrowed. He applied to the bank in April, 1893, for a further loan, and for an extension of time of payment on the amount then owing by him to the bank. The loan was accordingly made, and an extension of time of payment of his existing indebtedness was granted. Other loans and extensions were afterwards made Bailor by the bank, which are covered by the notes in suit. The affidavit of Taylor, in addition to the foregoing, states, in effect, that each loan and extension was obtained on the stipulation of Bailor that he would apply the proceeds of the sale of the farm in liquidation of his entire indebtedness to the bank; that subsequently the defendant, in violation of his said agreement, contracted with the Citizens Bank of Geneva to pay the pro
AFFIILAIED.