35 P. 37 | Idaho | 1893
This is an appeal from an order of the district court of Alturas county discharging an attachment. The plaintiff filed his complaint in the district court, which complaint contained several causes of action, separately stated. The first cause of action, as set forth in the complaint, arose upon a promissory note made by the defendant, and (as is alleged in the complaint) “one Myers Cohn also wrote his name thereon, as surety, thus: 'Myers Cohn.’ ” It is further alleged, in regard to said note, “that Fred. J. Keisel & Co. indorsed the same by writing and indorsing their names on the back thereof, thus: 'Fred. J. Keisel & Co.’ ” Then follows, in the complaint, the allegation of three other causes of action upon three several notes for the sum of $900 each, executed and delivered by defendant to plaintiff, and also a further allegation of the cause of action upon a contract alleged to have been entered into by plaintiff and defendant on the fifteenth day of July, 1891, by the terms of which, it is alleged, defendant agreed to pay plaintiff the interest on the three notes mentioned in the second, third, and fourth causes of action set forth in the complaint, “and also on two other notes for $900 each— one to become due May 15, 1893, and the other July 15, 1893.” Then follows in said complaint, for a sixth cause of action, an allegation of an indebtedness due from defendant to the firm of Wheaton & Lurhs for the sum of sixty-one dollars and thirty cents, for merchandise sold and delivered by said firm to defendant, and which claim is alleged to have been assigned to the plaintiff on May 3, 1893. Then follows another — the
It will be seen from the record that only the first cause of action had accrued when the suit was instituted. The affidavit for attachment bears date May 10, 1893. Section 4302 of the Revised Statutes of Idaho provides “that the plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached,” etc. We cannot, therefore, infer that there is any mistake as to dates, and cannot refrain from admonishing attorneys to be more careful in the preparation of their appeals than is evidenced in this one. It does not appear from the record upon what papers, records, or proofs the motion to discharge attachment was heard before the district- judge. There is ho evidence before us that any of the papers appearing in the record were before the district judge on the heariDg of the motion. There can be no excuse for such laches. The order of the district judge discharging the attachment is based upon the ground that the affidavit for attachment is not true, in that said affidavit states, as required by statute, that the alleged indebtedness from defendant to plaintiff, for which attachment is sought, “was not secured by any mortgage or lien upon real or personal property, or any pledge of personal property; whereas, in truth and in fact, it appearing to my satisfaction that the greater portion of said indebtedness was secured by a subsisting lien upon real estate,” etc.
There appears in the record what is denominated a “memoranda of agreement,” made and entered into between plaintiff and defendant on the thirty-first day of July, 1891, by the terms of which plaintiff, for a consideration therein expressed,
There is another matter, in connection with this ease, to which we desire to call attention. Section 4304 of the Revised