Finch v. Armstrong

• Decision Date: 17 October 1896
• Citation: 68 N.W. 740,9 S.D. 255
• Parties: FINCH et al. v. ARMSTRONG.
• Court: South Dakota Supreme Court

68 N.W. 740

9 S.D. 255

FINCH et al. v. ARMSTRONG.

Supreme Court of South Dakota

October 17, 1896

Appeal from circuit court, Brookings county; J. O. Andrews, Judge.

Action by George R. Finch and others against John Armstrong. From order dissolving attachments, plaintiffs appeal. Reversed.

Morphy Ewing, Gilbert & Ewing, A. S. Mitchell, Chas. S. Whiting, and P. C. Truman, for appellants. Chas. A. Savage and Cheever & Hall, for respondent.

FULLER J.

Plaintiffs brought an action against the defendant upon an account for merchandise not yet due, and seized a large amount of property, both real and personal, under an attachment based upon an affidavit dated October 28, 1895, which recites "*** that the said debt was incurred for property obtained under false pretenses, and that the defendant has sold, conveyed, and otherwise disposed 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 that said defendant is about to make sale, conveyance, and disposition 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. ***" Simultaneously an attachment based upon a similar affidavit was issued in aid of an action between the same parties upon a past-due claim and, as the cases are in all respects otherwise identical, and before us on appeal from an order dissolving both attachments, we will, for convenience, discuss and construe in this opinion the law of both cases. Denying the truthfulness of the foregoing averments of fact, and alleging that the affidavit is insufficient in law to warrant the issuance of an attachment for the reason that the incurring of a debt for property obtained under false pretenses is not a ground for attachment, the defendant, on the following affidavit, dated November 15, 1895, moved to vacate and discharge the same: "*** Affiant denies that any debt to plaintiffs was incurred for property obtained under false pretenses of any kind or description, or that he has assigned, disposed of, or secreted his property with intent to defraud his creditors, or at all, and denies that he is about to assign, dispose of, or secrete his property, or any part thereof, with the intent to defraud his creditors, or at all, or with any intent to hinder or delay them in the collection of their debts, or that he is about to make a sale, conveyance, or disposition of his property with a fraudulent intent to cheat or defraud his creditors; and alleges that each and all the statements to that effect made in said affidavit for attachment are false and untrue. ***"

Appellants' objection to a consideration of respondent's affidavit made in support of his motion because it fails to deny that he was "about to make sale, conveyance, and disposition of his property with the intent to cheat and defraud his creditors, and to hinder and delay them in the collection of their debts," at the time of the making of the affidavit for an attachment, was properly overruled. While, as a fundamental principle of law, the statutory ground must actually exist, and be stated in an affidavit, in order to warrant the issuance of and sustain an attachment, a motion to discharge the same, supported by an affidavit which specifically and unequivocally denies the existence of such ground, though stated in the present tense, relates retrospectively, like the answer to a complaint in an action to the time when the suit was instituted or the affidavit for an attachment was made, and is likewise adequate to impose upon the attaching creditor the burden of proving the issue thus raised. Having all the essential features of a good pleading under the code system, we are satisfied that respondent's affidavit is entirely sufficient. 1 Wade, Attachm. 279. Subdivision 3 of section 4995 of the Compiled Laws authorizes the issuance of an attachment upon an affidavit stating "that the debt was incurred for property obtained under false pretences," and subdivision 2 of section 5014 provides that "a creditor may bring an action on a claim before it is due and have attachment against the property of the debtor when the debt was incurred for property obtained under false pretences." Upon the theory that the foregoing provisions no longer exist as a ground for an attachment because the same were repealed by chapter 67, Laws 1895, the trial court excluded all evidence tending to show that the debt was incurred for property obtained under false pretenses, and this ruling is assigned and urged as reversible error by counsel for appellants, while respondent's counsel maintain the correctness thereof, and, moreover, contend that the incurring of the debt for property obtained under false pretenses never existed, under the statute of this state, as a ground for attachment. The affidavit for an attachment is the jurisdictional paper, and, when mandatory legislative requirements as to what that affidavit must contain have been stated therein in the language of the statute, a creditor may have the property of his debtor attached, and is expressly given the right to oppose a motion to discharge by the submission of affidavits or other proof tending to establish the truth of the allegations therein contained. Comp. Laws, §§ 4995, 5011. In William Deering & Co. v. Warren, 1 S. D. 35, 44 N.W. 1068, this court construed the statute as above indicated, and expressly held that "attachment will lie upon a debt not due, provided the affidavit contains all the necessary averments required by statute for a debt not due"; and when an action, like the present, upon contract for the recovery of money only, was brought upon an unmatured debt incurred for property obtained under false pretenses, the plaintiff could have the property of the defendant attached under section 5014, supra. Implement Co. v. Porteous (S. D.) 65 N.W. 429; Wyman v. Wilmarth, 1 S. D. 172, 46 N.W. 190. As the vital question here presented was neither raised below nor relied upon in this court, a construction of the law now under consideration was not absolutely essential to a decision of the cases above cited. We will proceed to further consider our system of attachment law as it was prior to the amendment of 1895, before examining that enactment, for the purpose of ascertaining by the application of standard rules of statutory construction its effect upon previously...