236 N.W. 261 | N.D. | 1931
This is an appeal from an order vacating an attachment. The action in which the warrant of attachment issued was brought to recover upon a promissory note. The affidavit for attachment stated as ground for attachment "that the defendant has sold, assigned, transferred, secreted, or otherwise disposed of, or is about to sell, assign, transfer, secrete or otherwise dispose of, her property, with intent to cheat or defraud her creditors, or to hinder or delay them in the collection of their debts." The defendant moved that the attachment be vacated and set aside on the ground that the affidavit upon which it was issued is untrue. Upon the hearing of the motion affidavits were submitted in support of and in opposition to the motion. The trial court made an order vacating the attachment and the plaintiff has appealed from such order.
We are of the opinion that the attachment was properly vacated, and that the order appealed from should be affirmed. A defendant whose property has been attached may move to discharge the attachment upon the ground, among others, that the affidavit upon which it was issued is untrue; and, if, upon the hearing of the motion "it appears to the satisfaction of the court or judge . . . that the affidavit upon which it was issued is untrue, the attachment must be discharged." *688
Comp. Laws 1913, § 7561; Sonnesyn v. Akin,
The controversy presented on this appeal revolves largely around the probative effect of the mortgage given by the defendant to the Bottineau Implement Company. It is claimed by the plaintiff that the execution and delivery of this mortgage is strong proof of the truthfulness of the charges made in the affidavit for attachment, — that the plaintiff was about to sell, assign, transfer, secrete or otherwise dispose of her property with the intent to cheat or defraud the plaintiff and other creditors.
The record discloses that the trial court gave careful consideration to the questions of fact and law involved on the motion to dissolve the attachment. In addition to the formal order, the trial court prepared and filed a memorandum decision setting forth the contentions and proofs of the parties as stated in the various affidavits submitted upon the hearing. In such memorandum decision the court said: "It appears that at the time the original affidavit for attachment was made all that the defendant had done was to sell her grain except that a *690 thresher's lien was filed against her alone for the threshing of the grain on her land, and it looks from the size of the threshing bill paid under that lien that she paid for all the threshing while she only received one-half of the grain. However, there does not seem to be any sufficient showing that at that time she had been fraudulently disposing of or concealing her property with the intent to cheat and defraud creditors. It appears that she is an old resident of the county and of good repute. Up to the time of this suit, and this attachment was levied, her actions do not seem to have been questioned. But the plaintiff contends that her giving the mortgage to the Bottineau Implement Company after this attachment substantiates his claim and entitles him to retain the attachment. The burden of proof is upon the plaintiff to maintain the proposition that she is disposing of her property to defraud creditors. It appears from Mr. Helgerson's affidavit that she gave the mortgage for a pre-existing debt. Our Supreme Court has held that a debtor may prefer his creditors. While the giving of this mortgage perhaps was injudicious, it apparently was brought on by the actions of the plaintiff himself in forceful attempt at collection. Prior thereto she had offered to make a settlement and had done nothing to justify an attachment. The court has carefully considered the matter but comes to the conclusion that the giving of the mortgage is not sufficient to show fraudulent intent."
It is the settled law in this jurisdiction that where the defendant denies the existence of the alleged grounds for attachment and moves to dissolve it on the ground that the affidavit upon which the warrant of attachment was issued is untrue, the burden is placed upon the plaintiff to show that the grounds alleged in the affidavit actually existed and if the plaintiff fails to sustain such burden the attachment must be dissolved. Jones v. Hoefs,
And, where, as here, the attachment is based upon the ground that the defendant has disposed of or is about to dispose of, property with intent to cheat or defraud his creditors, the plaintiff must establish the alleged fraudulent intent as a matter of fact. Gamble-Robinson Minot Co. v. Mauratis,
On appeal from an order made on a motion to discharge an attachment, due weight will be given to the trial court's decision (Peterson v. Ogland,
The order appealed from is clearly correct and must be affirmed. It is so ordered.
BURKE, BIRDZELL, NUESSLE, and BURR, JJ., concur. *692