Steele v. Dodd

• Decision Date: 12 October 1883
• Citation: 16 N.W. 909,14 Neb. 496
• Parties: STEELE v. DODD.
• Court: Nebraska Supreme Court

14 Neb. 496

16 N.W. 909

STEELE

v.DODD.

Supreme Court of Nebraska.

Filed October 12, 1883.

Error from Adams county.

Dilworth & Smith, for plaintiffs.

Batty & Ragan, for defendant.

LAKE, C. J.

This is a proceeding in error, and is brought to reverse an order of the district court for Adams county, dissolving an attachment levied on the property of Lizzie E. Reed, one of the defendants. The affidavit for the attachment was made by an attorney of the plaintiffs, in which several grounds were stated, substantially in the words of the statute, and to the effect that the defendants were “about to convert a part of their property into money for the purpose of placing it beyond the reach of their creditors;” that they “have property and rights in actions which they conceal;” that they “have assigned, removed, and disposed of a part of their property;” and “are about to dispose of a part of their property with intent to defraud their creditors.” Although this affidavit is made up of conclusions merely, having none of the facts or circumstances from which they were drawn, it justified the issuing of the order of attachment, and was adequate to support it, so long as it stood unchallenged by a denial of its truthfulness. But it was so challenged by the oath of Mrs. Reed, under a motion to dissolve, whereby the burden of showing that the conclusions in the affidavit for the attachment were warranted, was cast upon the plaintiff. Hilton v. Ross, 9 Neb. 406; [S. C. 2 N. W. REP. 862.]

Recognizing the obligation imposed upon them by this rule, the plaintiffs produced several affidavits which they claim overcome Mrs. Reed's denial, and fully support the attachment. But the court below seems to have thought otherwise, and so do we. In these supporting affidavits we find no facts tending to show any concealment of property or rights in action by Mrs. Reed, or any design of placing her effects beyond the reach of, or in any other manner of defrauding, her creditors. The first of these affidavits is that of G. D. Pierce, who made the one on which the order of attachment issued. The substance of it is that, during the years 1878-9, the defendants were engaged as partners under the firm name of Dodd & Co., in the retail grocery business, at Hastings, in this state; that, including her interest in that business, Mrs. Reed had real and personal property of the value of $3,850; that in 1879, about when the plaintiff's claim fell due, Mrs. Reed sold her interest in the partnership to her partner, Dodd, and also “disposed of all her other personal property, and converted the same into money, * * * with the intent to defraud her creditors;” that she made several conveyances of real property,--one in March, 1880, to Frank C. Phillips, for $350; one in September of the same year, to Carson J. Hamot, for the nominal consideration of $1,500; and one in September, 1881, to a Mrs. Paul, for the nominal consideration of $1,000.

No fraud is alleged by affiant of the first of these conveyances; but of that to Hamot he says “no consideration whatever was paid,” and that it was made “for the purpose and with the intent to defraud her...