| N.D. | Mar 18, 1909
This is an appeal from an order dissolving an attachment. The grounds of the motion to dissolve such attachment are stated in the notice of motion as follows: “That no proper warrant of attachment was ever issued, served, levied, and .returned in this cause in the manner required by law, and no- sufficient affidavit and undertaking for attachment was ever issued, served, or filed in this case.” It is stated in the notice that defendant appears specially by her attorney for the purpose, and makes no -other appearance. The grounds upon which the attachment was dissolved are stated -in the order dissolving the same as follows: “It appearing to the court from the records and files in- said action that defendant is not á resident of this state, and that neither the complaint, the affidavits for publication and attachment, nor any of the papers served or filed, or proceedings had herein, show that defendant has property within this state or debts owing to her from residents thereof, and it further appearing that the undertalcing for attachment is defective, in ¡that neither the principal nor any surety ever acknowledged the execution of same, nor was the execution proved in any manner, and it (being shown that the records and files failed to show the issuance of any warrant of attachment against the property of the defendant, and same failed to show that any valid warrant of attachment was ever levied upon'any property of defendant -in this state, and no return of the sheriff of Stutsman county was filed in the clerk’s office showing the proceedings of the sheriff upon any war-rant of attachment herein, therefore, on motion of Alfred Zuger, attorney for defendant, it is
Counsel for respondent urges in support of the order appealed from: (1) That the undertaking for attachment was insufficient, in that it was in a sum less than is required by section 6944 of the Revised Codes of 1905. (2) That the order dissolving the attachment was properly granted on the complaint and affidavit for attachment alone. (3) That the statutory steps required to- obtain constructive service of a summons on a non-resident and the statutory steps necessary to a valid attachment are interdependent, and that hence the attachment was properly dissolved because the statutory steps necessary to obtain a constructive service of the summons were defective. (4) That, even if the order dissolving the attachment was not strictly proper, still a reversal of such order would be unavailing for the reason, as stated, that no- jurisdiction iwas acquired; the steps necessary to acquire constructive service of the summons being defective. If none of these contentions is sound, the order appealed from must be reversed, but, on the other hand, if any of them are correct, such order must be affirmed.
The sufficiency of the undertaking for attachment is challenged upon the ground that the liability thereunder is limited to the .sum of $800, whereas the warrant of attachment specifies the amount of plaintiff’s claim to be the sum of $800, with interest at the rate of 7 per cent, per annum from the 17th day of May, 1907, which is the date of the summons, complaint, and the attachment papers in the case. The amount of plaintiff’s claim, as stated both in the complaint and affidavit for attachment, is the sum of $800, and no greater sum is prayed 'for in the complaint. The warrant of attachment refers to the complaint, with a recitation that plaintiff (therein demands judgment against the defendant for the sum of $800, with interest at (the rate of 7 per cent, per annum from the 17th day of May, 1907. This is clearly a mistake in so far as the ¡interest is concerned, but this is clearly immaterial, as it nowhere appears in .any of the papers in the case that plaintiff’s claim at the date the attachment was sued out was in excess of $800. Interest to accrue in the future should not be considered in determining the amount of the undertaking, as the amount of such interest could not be definitely determined, but would depend wholly upon the date of entry of judgment. It follows that i espondent’s counsel is clearly in error upon his first proposition.
It is -also contended that the .two grounds for attachment, to-wit, nonresidence of defendant and that she is about to sell and convey her property for the purpose of defrauding her creditors, are defectively stated in the complaint and affidavit for attachment, in that they are stated on information and belief. This is true so far as the statement in the complaint is concerned, but any statement of grounds for attachment in the complaint is improper and immaterial. If the statement contained in the affidavit is in the statutory language as required by section 6942, Rev. Codes 1905, it is sufficient. Turning to the affidavit, we find a positive statement that defendant is not a resident of this state. The argument of respondent’s counsel that because the complaint and affidavit were sworn to on' the same day that they must be considered together, and that, if there be any variance between the allegations of the complaint and the affidavit, the complaint must control, is wholly untenable. As before stated, such matters are wholly foreign to a complaint, and, if inserted therein, wall be treated as surplusage and given no controlling effect over the positive statements in the affidavit. We fully agree with respondent’s counsel that statements on information and belief in the affidavit' for attachment are insufficient, and that hence the affidavit in the case at bar, in so far as the second ground for attachment is concerned, is void; but the affidavit is good as to the other ground, namely, nonresidence of defendant.
It is next asserted that both the complaint and affidavit for attachment are defective, as they fail to' set forth a cause of action, and hence that the attachment was properly dissolved. This contention is based upon the following South Dakota decisions: Coats v. Arthur, 5 S. D. 274, 58 N. W. 673; Narregang v. Muscatine Mortgage & Trust Co., 7 S. D. 574, 64 N.W. 1129" court="S.D." date_filed="1895-11-09" href="https://app.midpage.ai/document/narregang-v-muscatine-mortgage--trust-co-6684322?utm_source=webapp" opinion_id="6684322">64 N. W. 1129; Pearsons v. Peters, 19 S. D. 162, 102 N.W. 606" court="S.D." date_filed="1905-02-21" href="https://app.midpage.ai/document/nichols-v-smith-6686548?utm_source=webapp" opinion_id="6686548">102 N. W. 606. Such contention deserves but brief
It is next -contended that the steps taken- to obtain constructive service o-f the summons were defective in- certain particulars, and hence that the attachment must fall. We think -such contention untenable. It is -true, as_ contended by respondent’s counsel, that -by section 6840, Rev. Codes 1905, the affidavit required as a basis fo-r obtaining constructive service of the summons must state, or the complaint show, “(1) that the defendant has property within this state or debts -owing to him from residents -thereof.” Even if this were a proper ground for dissolving the attachment, we think the complaint fairly shows such fact. The -complaint alleges, in substance, that -on May 2, 1907, the defendant, through her duly authorized agent, entered into a -contract to s-ell and transfer, -by deed o-conveyance -cértain real property therein -described and located in Stutsman county, N. D. And we think it -may fairly be presumed from such fact, when no-t denied, that defendant was the owner of such real property, not only on May 2d, but on May 17th, the date the action was -begun and the attachment sued out.
In -conclusion w-e are -convinced that there is no merit -in any of the contentions urged by respondent’s counsel why th-e order appealed from should be sustained and the record fails to disclose any valid reason for sustaining the same.
The -district court is accordingly directed to set aside ¡its order, and reinstate the attachment proceedings.