7 S.D. 206 | S.D. | 1895
This is an appeal from an order discharging an attachment. There are two preliminary motions — one on the part of the appellant, and one on the part of the respondent— necessary to be determined.
The motion of the appellant is to strike out the respondent’s additional abstract, for the reason that such abstract “is not a further or additional abstract, showing matters necessary to a full understanding of the questions presented, but is simply a printed motion, under the guise of an abstract, to strike out certain parts of appellant’s abstract.” In the appellant’s abstract appear copies of a trust deed and an inventory, which the respondent, in his additional abstract, denies were introduced in evidence, or considered by the court on the motion to discharge the attachment. This is a matter which can be determined from an examination of the original records in this court. When a respondent desires to correct the appellant’s abstract by "striking out matters that are not contained in the original record, an additional abstract is proper. Bringing this matter to the attention of this court, there.» fore, by an additional abstract, is the proper practice, and the mo» tion to strike out the same is denied. <
Respondent moves the court to dismiss the appeal upon two grounds: First, because the undertaking on appeal was not served upon the clerk of the court; second, because the affidavits of the sureties are insufficient to render the undertaking on appeal available as an undertaking.
It is not necessary to serve the undertaking on an appeal on th© clerk. It is sufficient to file the same with the clerk, with the
In support of the second ground the respondent brings to the attention of this court, by his additional abstract, the justification to the undertaking on appeal, from which it appears that the same is defective, in that it omits the clause required by section 5232 to be contained in the undertaking, namely, “in property within this state not by law exempt from execution.” This section of the statute is mandatory, and provides: “An undertaking upon an appeal shall be of no effect unless it be accompanied by the affidavit of the sureties, in which each party shall state that he is worth a certain sum mentioned in such affidavit, over and above all his debts and liabilities, in property within this territory not by law exempt from execution, and which sum so sworn to by such sureties shall, in' the aggregate, be double the amount specified in said undertaking.” The undertaking is clearly insufficient, and must be disregarded. But the appellant asked leave; under the provisions of section 5235, to file a new undertaking, and submitted to the court an undertaking executed in due form, at the time appellant’s motion was presented. Section 5235 provides as follows: “When a party shall in good faith give notice of appeal, and shall omit, through mistake or accident, to do any other act necessary to perfect the appeal or make it effectual, or to stay proceedings, the court from which the appeal is taken, or the presiding judge thereof, or the supreme court, or any one of the justices thereof, may permit an amendment, or the proper act to be done on such terms as may be just.” The defect in the justification in this appeal was evidently made through a mistake or accident, and hence, under the liberal provisions of that section, we are of the opinion that the appellant should be permitted to file a new undertaking as a substitute for the defective one now on file '
This brings us to the merits. It is contended by the respondent that as the defendant and apppellant made an assignment of all his property for the benefit of his creditors subsequently to said attachment, but before the motion to discharge the same was made, he had no such interest in the property attached as would enable him to make this motion to discharge, as by the assignment his interest in the property terminated. That question was before this court in Bank v. Carroll, 1 S. D. 372, 47 N. W. 397, and it held that “an insolvent debtor, who has made a general assignment for the benefit of creditors, has such a reversionary interest in the assigned estate that he may move to vacate an attachment upon a direct traverse of the procuring affidavits.” That decision rules this case, and disposes of the question presented.
Appellant further contends that the defendant and respondent is estopped from questioning the attachment proceedings for the reason that he advised the attachment proceedings, and that it was because of the respondent’s advise and statement that the appellant took out the attachment. We are of the opinion that the appellant is right in its contention. It is quite clear from the affidavit of appellant’s attorney, Mr. Merrick, who acted for the plaintiff and appellant in taking out the attachment, that he was encouraged, if not directly requested, by the respondent to take out the same, Mr. Merrick first sought to get security by way of a second chattel mortgage, and as to this he, in his affidavit, says: “Deponent further says that at that time the said defendant told this deponent that he would not sign the said chattel mortgage for the reason that if he did he could not claim his exemptions, and if this deponent would attach he could then claim his exemptions. Said defendant also told this deponent that plaintiff was
The affidavit of the respondent, in which he, to some extent, attempts to contradict the statements of Mr. Merrick and Sheriff Richardson, is very unsatisfactory, and leaves but little doubt upon the mind that when the attachment was levied he regarded it as the best thing for him, as he could then take out his exemptions. And it is quite clear that he was hot only satisfied to have the attachment taken out, but encouraged, if he did not directly request, said Merrick to take the proceedings. He cannot be permitted to afterwards change his mind to the prejudice of appellant. Having, by his acts and statements, induced the appellant, through its attorney Merrick, to. believe that he was satisfied with, if he did tot actually request him to take out, the attachment, he is estopped from npw .claiming that the attachment not prop.
As the preponderance of the evidence is largely in favor of appellant, the court evidently took an erroneous view of the law governing the case, and its decision must be reversed, and it is so ordered. And it is further ordered that the new undertaking submitted on the hearing be filed and substituted for the original undertaking, as of date of April 21, 1894, when the same was presented to this court.