Baird v. Irvine
| Decision Date | 05 August 1931 |
| Docket Number | No. 5932.,5932. |
| Citation | 61 N.D. 319,237 N.W. 833 |
| Parties | BAIRD v. IRVINE. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where a defendant denies the existence of the grounds for an attachment and moves a discharge thereof on that account, the burden is upon the plaintiff to establish the existence of such grounds, and if he fails to do so the attachment must be discharged.
Syllabus by the Court.
On appeal from an order denying a motion to discharge an attachment on the ground of the falsity of the affidavit therefor, the order of the trial court is presumptively correct, and, where oral testimony was taken at the hearing on the issues made by the motion to discharge, the findings of the trial court will not be disturbed unless clearly and unquestionably opposed to the preponderance of such testimony.
Appeal from District Court, Emmons County; Wm. H. Hutchinson, Judge.
Action by L. R. Baird, as receiver of the People's State Bank of Linton, against F. B. Irvine. From an order denying defendant's motion to discharge an attachment, defendant appeals.
Affirmed.
I. F. Wagner, of Napoleon, for appellant.
Zuger & Tillotson, of Bismarck, for respondent.
This appeal is from an order of the district court of Emmons county denying defendant's motion to discharge an attachment.
The plaintiff sued the defendant on a promissory note for $800, dated January 3, 1930, and due on demand. This note was a renewal of a former indebtedness which was secured by a chattel mortgage covering certain personal property belonging to the defendant. The plaintiff procured the issuance of a warrant of attachment and caused a levy to be made thereunder. The affidavit for attachment set forth that “the defendant has sold, assigned, transferred, secreted and otherwise disposed of, and is about to sell, assign, transfer, secrete or otherwise dispose of his property with intent to cheat or defraud his creditors or to hinder or delay them in the collection of their debts.” The defendant moved to discharge the attachment for the reason that the grounds therefor set forth in the affidavit were false and untrue. The defendant made a showing in support of his motion by affidavits, and the plaintiff filed counter affidavits in resistance thereof. When the matter came on to be heard before the court the defendant was sworn as a witness in his own behalf, and one Pietz was sworn as a witness on behalf of the plaintiff. Both of these witnesses were examined with respect to the matters in issue. It appears that the defendant was a resident of Emmons county. At the time plaintiff's mortgage was given the property covered thereby was in Emmons county. Some of this property was thereafter sold by the defendant and taken from the county. Other of it was removed from Emmons county and kept in the adjacent county of Burleigh. Certain other personal property of the defendant not covered by the mortgage was pledged to secure a loan. It does not appear as to whether the defendant had any other property, real or personal, than that concerning which evidence was thus offered.
The plaintiff's showing both by affidavit and oral testimony was to the effect that the defendant had sold or removed and concealed the property without the consent of the plaintiff and had failed and refused to account therefor to the plaintiff. On the other hand, the defendant's showing both by affidavit and oral testimony was to the effect that, though certain of the...
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