Dunn v. Claunch
| Decision Date | 04 March 1904 |
| Citation | 76 P. 143,1904 OK 23,13 Okla. 577 |
| Parties | J. F. DUNN v. N. B. CLAUNCH, J. C. GILLILAND AND M. H. DODSON. |
| Court | Oklahoma Supreme Court |
¶0 1. ATTACHMENT--Amendment a Matter of Judicial Discretion, When. When a motion is filed to discharge an attachment, but is not supported by an affidavit denying the grounds set out in the affidavit of attachment, the court may, when said motion is called for trial, in its discretion, allow the defendant to file an affidavit denying the allegations contained in such attachment affidavit.
2. SAME--Evidence. An affidavit setting forth the existence of the grounds of attachment in the language of the statute, unaccompanied by any facts showing them to be true, will support the writ; but when an affidavit is filed by the defendant, in which he positively denies the existence of the facts stated in the attachment affidavit, the burden is thereby cast upon the plaintiff to establish by a preponderance of the evidence the facts necessary to sustain the attachment; but, where a defendant, notwithstanding his affidavit denying the existence of any of the grounds of attachment, introduces his evidence without objection, before the plaintiff is required to introduce any evidence, he thereby waives any error on the part of the trial court is not dismissing the attachment for want of evidence on behalf of the plaintiff.
3. SAME. A citizen of this territory has a right, in good faith, to move all of his property to another state, and such removal of his property will not authorize the issuance and levying of a writ of attachment thereon. It is only where one is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors, that an attachment on the ground of removal of property will lie.
Error from the District Court of Greer County; before F. E. Gillette, Trial Judge.
Shartel, Keaton & Wells and J. A. Powers, for plaintiff in error.
Garrett & Garrett, for defendants in error.
¶1 This is an action by N. B. Claunch and others against J. F. Dunn for debt. At the commencement of the action an attachment was sued out on the ground that the defendant was about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors, and levied on certain cattle of the defendant. The defendant filed a motion to dissolve the attachment, but failed to verify the facts set forth therein until the same was called for hearing, when the defendant asked leave to amend by properly verifying the facts, set forth in his motion denying the allegations of the affidavit of attachment, which the court permitted over the objections of the plaintiff, and it is contended by them that this was error, and the defendant's motion ought not therefore to have been considered and even though error was subsequently committed, it cannot avail the defendant, because he had not placed himself in a position to be heard. This contention is not tenable. The trial court, in its discretion, had the right to permit the amendment, and the amendment having been made, both parties were bound by its legal effect, the same as though the affidavit had been originally attached. After the amendment of the motion, the plaintiff introduced in evidence his affidavit in attachment, the attachment bond, and the order of attachment, and the sheriff's return, and then rested. The defendant contends that he was at that time entitled to a judgment discharging the attachment. Ordinarily the trial court should have found for the defendant, because the burden was upon the plaintiffs to establish the charge in their affidavit in attachment before the defendant should have been required to furnish any evidence tending to disprove it, other than the affidavit attached to the motion to dissolve. Where the plaintiff files an affidavit alleging the grounds of attachment in the language of the statute, unaccompanied by any other facts or evidence showing them to be true, the attachment should be sustained unless the defendant files...
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First Bank of Texola v. Terrell
......Williams v. Farmers' Grain & Gin Co., 13 Okla. 5, 73 P. 269; Dunn v. Claunch et al., 13 Okla. 577, 76 P. 143. The question of testing the legal sufficiency of a pleading by an objection to the introduction of ......
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First State Bank of Durant v. Smith
......4 Cyc. 424. ¶7 In the case of Dunn v. Claunch et al., 13 Okla. 577, 76 P. 143, Mr. Justice Burwell, in discussing what constitutes fraud under the fifth subdivision of section 5701, ......
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Powell v. Sec. Nat'l Bank
......Davis v. Howe, 99 Okla. 118, 226 P. 316; Ely Walker Dry Goods Co. v. Smith et al., 69 Okla. 261, 160 P. 898; Dunn v. Claunch et al., 13 Okla. 577, 76 P. 143; Henderson v. Gilliland et al., 187 Ala. 268, 65 So. 793. Although Powell attempted to prove that he did ......
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Davis v. Howe
...... be inferred from circumstances, must be shown and brought home to the opposite party by clear and convincing proof." ¶18 And, in Dunn v. Claunch et al., 13 Okla. 577, 76 P. 143, it was said:"And an intent to defraud is never presumed but he who alleges such intent must prove ......