7 S.D. 578 | S.D. | 1895
Lead Opinion
This appeal is from an order dissolving an attachment issued in an action by plaintiffs against defendants, to recover upon account of goods, wares, and merchandise sold by plaintiffs to defendants at a price named and agreed
Section 5325, as amended by chapter 70, Laws 1893, provides that, “when notice of motion is necessary, it must be ppryed six days before the time appointed for the hearing, but
As Kistner appears to have been connected with the credit department of appellants, a wholesale mercantile firm located in one of the great trade centers of the country, it is fair to presume, in the absence of anything to the contrary, that his whereabouts could have been readily ascertained; and as there was nothing before the court to intimate that any effort in that direction had been made, or that if present he would be able to do more than to state the source of the information and belief upon which he had, in postive terms, made the affidavit upon which the attachment issued, and for the further reason that it was stated substantially in the affidavit of counsel for appellants that the postponement for less than 15 days would be without avail, we are disposed to believe that the trial court neither abused its discretion in declining to continue the hearing for fifteen days, or in refusing to grant, upon the showing made, an order compelling the station agent at Davis and Mr. Lingo, of that place to make affidavits.
Subdivision 5 of section 5324 of the Compiled Laws, being the only statutory provision authorizing an order by which a compulsory affidavit, to be used upon the hearing of a motion, may be obtained as follows: “When any party intends to make
Concurrence Opinion
While I do not vote for a reversal, I should personally have been better satisfied if the court below had allowed appellant further time within which to procure additional affidavits, if he could, to sustain his attachment, and I concur in this decision only because I do not feel justified in saying that the trial court misused its discretion in refusing such time.