51 Neb. 247 | Neb. | 1897
This is a proceeding to review an order of the district court dissolving an attachment issued upon an affidavit alleging substantially all the grounds for an attachment set forth in the statute. The motion to discharge assigns the following reasons therefor:
1. The facts stated in the attachment affidavit are insufficient to justify the issuing of the writ.
2. No action was pending when the affidavit for attachment -was filed.
3. The statement of facts in said affidavit are untrue.
There is no merit in either of the first two grounds of the motion, since the attachment affidavit is sufficient in form and substance to authorize the granting of the writ, and the suit was brought and the attachment affidavit Avas filed simultaneously. The statute (Code of Civil Procedure, sec. 198) authorizes the issuance of an attachment against the property of the defendant, at, or after, the commencement of an action.
It is insisted, in argument, that the defendant was in no position to assail the attachment, because he had no residuary or contingent interest in the attached property at the time the motion was filed. This contention is predicated upon the fact that the defendant had incumbered the property by mortgages for more than its value, and the mortgagees were in possession. But this does not preclude him from moving the dissolution of the attachment. Section 235 of the Code of Civil Procedure provides: “The defendant may at any time before judgment, upon reasonable notice to the plaintiff!, move to discharge an attachment, as to the whole or a part of the property attached.” The legislature, it is clear, has not by the
In support of the proposition that the defendant has no standing 'in court to move the dissolution of the attachment, counsel for plaintiff have cited McCord v. Krause, 36 Neb., 764, in which case it was said: “As between plaintiff and defendant alone, upon motion to dissolve an attachment of the chattels mortgaged, the defendant can be heard only because of his residuary, contingent interest, which may remain after the said mortgages are satisfied.” The same principle was subsequently recognized and applied in Darst v. Levy, 40 Neb., 593, and Kountze v. Scott, 49 Neb., 258. To the extent any language used in those cases is susceptible of being construed as not in accord with the principle laid down-in Grimes v. Farrington, Kilpatrick-Koch Dry Goods Co. v. Bremers, and Dayton Spice-Mills Co. v. Sloan, supra, it is disapproved. If a plaintiff in attachment is estopped or barred from asserting that the defendant has not sufficient interest to defend against an attachment, it logically follows that the latter may move to dissolve the attachment, at least upon the ground the affidavit upon which it was based is untrue, even though he may not at the time be the owner of the property. Doubtless, it is- not competent for a defendant to move the discharge of an attachment on the ground that the property seized does not belong to him. (Langdon v. Conklin, 10 O. St., 439; Mitchell v. Skinner, 17 Kan., 563.) In other words, he cannot set up title in a third party to defeat the attachment. A debtor who has conveyed the property subsequently attached' to one not a party to the suit will not be permitted on the hearing of the motion to dissolve to establish the validity of the sale, by showing that the transferee was innocent of any fraud, and therefore acquired a perfect title. As said in Landauer v. Mack, 43 Neb., 430: “In order to sustain an attachment against the defendant it is, for obvious reasons, sufficient
The facts bearing upon the merits of the motion to dissolve are identical with those in Smith v. Bowen, 51 Neb., 245, decided herewith, and, upon the authority of that case, the order dissolving the attachment is
Affirmed.