Bank of Commerce v. Latham

• Decision Date: 08 May 1899
• Citation: 57 P. 184,8 Wyo. 316
• Parties: BANK OF COMMERCE v. LATHAM
• Court: Wyoming Supreme Court

57 P. 184

8 Wyo. 316

BANK OF COMMERCE v. LATHAM

Supreme Court of Wyoming

May 8, 1899

ERROR to the District Court, Sheridan County, HON. JOSEPH L STOTTS, Judge.

The facts are stated in the opinion.

Reversed.

E. E Lonabaugh and W. S. Metz, for plaintiff in error.

A denial by motion, unsupported by affidavit, of the truth of the grounds for attachment as alleged in the affidavit for attachment, amounts to no denial at all, and creates no issue. Until an affidavit is filed by defendant denying the grounds set forth in the attachment affidavit, the plaintiff can not be required to submit proof to sustain the writ. (R S., Sec. 2911, 2918; Barton v. Ferguson, 37 S.W. 49; Sawyer v. Flow, 1. C. C. A., 56; 48 F. 207; Jordan v. Dewey, 59 N.W. 88; Jenks v. Richardson, 71 F. 365; Bank v. Bailer, 67 N.W. 865; Bank v. Swan, 3 Wyo. 368; Wearne v. France, id., 273.)

No appearance for defendant in error.

KNIGHT, JUSTICE. POTTER, C. J., and CORN, J., concur.

OPINION

KNIGHT, JUSTICE.

This is an appeal from an order of the district court dissolving an attachment upon motion of the defendant's attorney, in which said motion the grounds for the attachment contained in plaintiff's affidavit are set out and denied.

This action was originally brought under the provisions of the Revised Statutes of 1887, which read as follows:

"Section 2912. A creditor may bring an action on his claim before it is due, and have an attachment against the property of the debtor:

First. When a debtor has sold, conveyed, or otherwise disposed of his property with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts; or,

Second. Is about to make such sale, conveyance, or disposition of his property, with such fraudulent intent; or,

Third. Is about to remove his property, or a material part thereof with the intent, or to the effect of cheating or defrauding his creditors or of hindering or delaying them in the collection of their debts; or where the defendant is about to become a non-resident of the State. (S. L., 1886, Ch. 60, Sec. 564; R. S. O., Sec. 5564)."

"Sec. 2913. The attachment authorized by the last section may be granted by the court in which the action is brought, or by a judge thereof; but before such action shall be brought, or such attachment granted, the plaintiff or his agent or attorney, shall make an oath in writing, showing the nature and the amount of the plaintiff's claim, that it is just when it will become due, and the existence of any one of the grounds for attachment enumerated in the last preceding section. (S. L. 1886, Ch. 60, Sec. 565, R. S. O., Sec. 5565)."

In pursuance of the above statute the plaintiff presented to the court his affidavit, in writing, which reads as follows:

"In the District Court of Sheridan County, Wyoming: The Bank of Commerce, a corporation, Plaintiff, v. I. P. Latham, Defendant, Affidavit for attachment. B. F. Perkins, of lawful age, being first duly sworn according to law, deposes, and says that he is the president and agent of the plaintiff above named; that said defendant is justly indebted to said plaintiff in the full and just sum of $ 300, and that said indebtedness arises out of two promissory notes, each of the sum of $ 150, made, executed, and delivered by said defendant to H. R. Camp, and by said H. R. Camp duly indorsed, transferred, and assigned to the plaintiff herein for a valuable consideration, before maturity, in the ordinary course of business. That said claim is just. That said claim will become due and payable May 1, 1898. That the amount which this affiant believes the plaintiff ought to recover from said defendant is the sum of $ 300, together with reasonable attorney fee, and that said defendant is about to sell, convey, and dispose of his property with the fraudulent intent to cheat and defraud his creditors, and to hinder and delay them in the collection of their debts; and that said defendant is about to remove his property out of the jurisdiction of this court with the intent and to the effect of cheating and defrauding his creditors and of hindering and delaying them in the collection of their debts, and that said defendant is about to remove from and become a non-resident of the State of Wyoming."

The court thereupon made the following order (omitting the title):

"This cause coming on to be heard this 1st day of February, 1898, on the affidavit of B. F. Perkins, president and agent of said plaintiff, and upon the verified petition of plaintiff praying for an order for a writ of attachment against the property of said defendant, and the court having heard the said petition and affidavit read, and being fully advised in the premises, finds that the application of plaintiff for a writ of attachment should be granted.

"It is therefore ordered by the court that a writ of attachment be issued by the clerk of said court under the seal thereof, directed to the sheriff of said county, and against the property of said defendant, and that the same be issued in the sum of $ 450."

Thereafter within the time and as provided by law, the writ of attachment having been issued and served, said defendant by his attorney filed in said case the following motion to discharge attachment (omitting the title):

"And now comes the defendant I. P. Latham, and moves the court to discharge the attachment as to the property attached in this case at the suit of the plaintiff for the following reasons: The defendant denies that the statements in the affidavit for attachment filed in said cause, to wit: 'And said defendant is about to sell, convey, and dispose of his property with fraudulent intent to cheat and defraud his creditors, and to hinder and delay them in the collection of their debts, and that said defendant is about to remove his property out of the jurisdiction of this court with the intent and to the effect of cheating and defrauding his creditors and of hindering and delaying them in the collection of their debts; and that said defendant is about to remove from and become a non-resident of the State of Wyoming' are true, but they are each and all wholly false and untrue and will so appear and be shown on the hearing hereof."

A hearing was had upon said motion, the record of which is as follows (omitting the title):

"Hearing upon motion to discharge attachment had this 1st day of March, A. D. 1898. This cause came on to be heard upon the motion to dissolve the attachment, and motion denying the grounds of the attachment. The court holds that the grounds of the attachment being denied by the defendant, that the burden of proof to sustain the allegations of the attachment is upon the plaintiff. The plaintiff refuses to produce any evidence sustaining the grounds alleged for his attachment excepting the original affidavit filed in the case for attachment. The defendant also furnishes no evidence nor affidavit, but simply filed...