1 S.D. 35 | S.D. | 1890
This appeal is from an order of the circuit court of Hyde county, overruling a motion to diásolve an attachment. The affidavit for attachment is as follows: “Olin G.
Reiniger, attorney for the plaintiff in the above entitled action, being duly sworn, says that J. G. Warren, the defendant in the above entitled action, is justly indebted to the plaintiff, William Deering & Co., in the sum of one hundred and sixteen ($116)
On November 25, 1889, appellant moved to dissolve the attachment, based upon the following grounds: First. That the allegation in the affidavit for attachment, “that the defendant was about to remove from Hyde county with the intention of permanently changing his residence, is false. ” Second. That at the time plaintiff demanded security for his claim, and at the time the affidavit for attachment was made, and the warrant of attachment was levied, the plaintiff had two chattel mortgages on property of the defendant of sufficient value to pay its claim. Third. That it is not alleged in the affidavit for attachment that the security held by the plaintiff for the payment of its claim had become valuless or insufficient to satisfy
The proceeding by attachment is purely statutory, — the creature of the written law. Hence but little assistance can be obtained in discussing this peculiar remedy by looking beyond the statute by which it is authorized. The force and effect of attachment laws can only be tested by the principles of statutory construction. They have no features peculiar to the common law, and are so far derogatory to common rights that an appeal to this remedy is not specially favored by the courts. Attachment amounts to an execution in advance of trial and judgment. Property is taken, under legal process, at the instance of one, without even the claim of title, from the possession of another, whose title is unquestioned. It is in consideration of the harshness
Our statute, in attachment proceedings, requires an affidavit by the plaintiff, or some one in his behalf, and it must show: (1) The amount of the debt, and the nature thereof. (2) One or more of the following grounds for attachment: That. the defendant is a foreign corporation, a non-resident of the territory, or has departed therefrom with intent to defraud his creditors, or to avoid the service of summons, or keeps himself concealed with such intent; or that the debt was incurred by obtaining plaintiffs property under false pretenses; that defendant is about to remove some of his or its property out of the territory, with intent to defraud creditors; or that he has assigned, disposed of, secreted, or is about to assign, any property with like intent; or that a debtor residing in this territory, who is about to remove from the county where he resides, with intent to permanently change his or her residence, and upon demand refuses or does not secure the debt, the creditor shall have the right of attachment. These proceedings
The defendant, in his motion to dissolve, relies upon both grounds for dissolution, and adopts both methods of procedure. As the first ground of dissolution, he denies that the defendant is about to remove from the county with intent to permanently change his residence. In support of this denial, he files his own affidavit, in which he admits that he had declared his intention to go to some place where he could obtain employment, in order to maintain his family until another crop could be grown, but that he never contemplated a permanent change of residence from the county. This was all the evidence upon the part of defendant upon this ground, except the presumption arising from the fact that ho was the claimant of a timber-culture claim, and a quarter section of land more or less cultivated. In opposition to this, and in support of the original affidavit filed upon the part of the plaintiff, the affidavits of Judson K. Sechler, L. Snyder, Jonathan Snyder, and S. R. Meigs were filed. From these it is clearly shown, both by the declarations of defendant and his subsequent acts, that his intention was to abandon his residence in Hyde county, and probably to leave the territory permanently and we are of the opinion that the defendant failed to substantiate his first ground of dissolution of the attachment, and that this allegation in the affidavit was reasonably true.
The second, third, and fourth grounds in the motion embrace the same proposition of law, and will be considered together. At the time of the commencement of these proceedings the plaintiff had two chattel mortgages upon some of the property attached, and which the defendant claimed was of sufficient value to secure and pay him for his debt. This claim of defendant was not denied by plaintiff, except that the crop of wheat upon which one of the chattel mortgages was given was
We are cited by counsel for appellant to Sections 4388, 4389, Comp. Laws, to show that, before mortgaged personal property can be raken under attachment or execution, the officer so taking must pay or tender to the mortgagee the amount of the mortgage debt and interest, or deposit the amount thereof with the county treasurer, payable to the order of the mortgagee. These sections have no applicability when the attaching creditor and the mortgagee are one and the same person or persons. This law was enacted so that a creditor of the mortgagor, other than the mortgagee, might avail himself of the proceeds of property belonging to the mortgagor, which had a lien upon it, after the person holding the lien had received his pay. In the case at bar, if the plaintiff could have received payment of his debt from some other person than himself, he, no doubt, would have gladly released his mortgage. The position taken by appellant on this point we think untenable.
The fifth ground of the motion is that the affidavit for the attachment is not made by the plaintiff, nor is it made by a person having authority to make it, nor that the person making it could have had personal knowledge of the facts therein stated. There is ordinarily no difficulty in ascertaining whether the affidavit was made by one authorized by law to make it or not, for the statutory terms are usually sufficiently clear, by stating who shall make the affidavit, but upon this point our statute is silent. Section 4995, Id., says: “The warrant may issue upon affidavit, stating: * * *” The words are not restrictive, but general. It only requires an affidavit alleging certain facts to exist, and does not say who shall, or shall not, make it, so that the party making the affidavit knows the facts to which he
The sixth, seventh, and eighth grounds for a dissolution of the attachment are that the debt upon which the original cause of action was instituted was not due at the time, and that the affidavit for the attachment does not contain the allegations required by the statute for the issuance of the writ upon a debt not due. The affidavit states that the cause of action is founded upon two promissory notes given by defendant to plaintiff for the sum of $50 each, one payable on the 1st day of November, 1888; and the other payable on the 1st day of November, 1889, which, together with the accrued interest, make the sum of $116. The affidavit was sworn to on the 23d day of July, A. D. 1889, and writ of attachment issued on that day. Prom the face of the affidavit it will be seen that one of the notes and part of the cause of action was not due until November, 1889, and in the traverse of this affidavit by the defendant he exhibits a chattel mortgage, in the body of which are the following words: “For the purpose of securing payment of $50 and interest due to William Deering & Co., according to the condition of one promissory note payable to William Deering & Co., viz., $50.00,