Flannagan v. Newberg

• Decision Date: 01 August 1866
• Citation: 1 Idaho 78
• Parties: James Flannagan v. Julius Newberg.
• Court: Idaho Supreme Court

1 Idaho 78

James Flannagan v. Julius Newberg.

Supreme Court of Idaho

August 1, 1866

ATTACHMENT-DISSOLUTION.-A writ of attachment improperly issued should be dissolved on motion.

CUMULATIVE EVIDENCE.-When newly discovered evidence relates to a substantial point or particular fact which was inquired into on the trial, it is cumulative.

NEW TRIAL-NEWLY DISCOVERED EVIDENCE-PRACTICE.-If the newly discovered evidence brings to light some new fact bearing upon the main question at issue, and would be likely to change the result, a new trial should be granted.

APPEAL from the First District, Nez Perce County.

Curtis & George, for the Appellant. A. Heed, for the Respondent.

KELLY J.,

delivered the opinion of the court,

McBRIDE C. J., and CUMMINS, J., concurring.

This action was brought by plaintiff as assignee of a promissory note for six hundred and twenty dollars, made by the appellant March 27, 1863, and payable to one E. Malony or order, and transferred by the payee to this plaintiff (appellee) some time after its maturity. The note and one hundred and fifty dollars cash were given for one-half of a pack train, and was to become due when the train returned from Florence to

Lewiston. The note was left in the hands of James O'Neil for safekeeping until the return of the train, and remained in O'Neil's hands until about the first of November of the same year. The note was assigned to plaintiff October 10, 1863. The plaintiff, Flannagan, at the time of commencing the suit, sued out a writ of attachment and levied upon the property of defendant. The ground for issuing the attachment, as set forth in the affidavit, is that the defendant was about to sell, convey, or otherwise dispose of his property with intent to hinder, delay, or defraud his creditors.

The answer of the defendant admits the making of the note, but sets forth that the note had been paid while in the hands of O'Neil, and defendant was fully discharged from said indebtedness and the plaintiff had full notice.

The defendant on the nineteenth of December moved to dissolve the attachment on the ground that the facts upon which the attachment was issued did not exist, and the affidavit upon which the writ issued was insufficient and shows no cause for an attachment. This motion was heard upon affidavits submitted by each party, but was denied by the court, to which ruling the defendant's counsel duly excepted. This cause was tried by a jury, and a verdict found for the plaintiff for the amount prayed for in the complaint. The defendant moved for a new trial on the ground that the verdict was contrary to evidence, and also on the ground of newly discovered evidence. The evidence to support the attachment should show that the defendant had or was about to dispose of his property to hinder, delay, or defraud his creditors.

The affidavit of the plaintiff Flannagan shows that the defendant Newberg denied the indebtedness upon which the suit was brought, and had denied such indebtedness from the time he made the second trade with Malony, which the plaintiff well knew; that because the defendant denied such indebtedness and refused to present an order for said note, and declared his intention to go to Europe, the plaintiff was induced to believe the defendant about to dispose of his property to hinder, delay, or defraud his creditors; that defendant told plaintiff he had

golddust on deposit in the town of Lewiston subject to attachment; that defendant had sold his pack train to one L. P. Brown, and that he had no property aside from money or debts that he (plaintiff) knew of.

The testimony of the other witnesses on the part of the plaintiff corroborates the statement that the defendant had declared his intentions to close up his business and make an extensive tour in Europe. The evidence upon which this attachment must be sustained cannot go to any other ground for the issuance of an attachment except the one alleged in the affidavit. That portion of the evidence which relates to the defendant's leaving the territory is entirely irrelevant, because no such ground is alleged in the affidavit.

The plaintiff swears that he had made diligent inquiry in the town of Lewiston and was unable to find where the defendant's golddust was deposited. He does not set forth what diligence he had used either generally or specially. He does not say that the defendant refused to inform him where his golddust was deposited, or that he ever made inquiry of the defendant, or that the defendant ever refused to tell him of any other property that he owned. The plaintiff does not say he made inquiry at the most usual places of making deposits in the town of Lewiston, to learn the whereabouts of defendant's golddust, or that if defendant had golddust on deposit it was deposited in some unusual manner, either by the enjoinment of secrecy or making the deposit with some person not in the habit of receiving deposits.

On the other hand, the defendant shows that his golddust was on deposit, as he stated to plaintiff, at the assay office, and in the custody and safe of the most public hotel-keeper in said town without any enjoinment of secrecy. The defendant also shows by twelve witnesses who are acquainted with the defendant's dealing, and many of them have had extensive mercantile dealings with him for a long time prior and up to the time of the issuance of this attachment, that the defendant was always honorable in his dealings, paid his debts, had property to a considerable amount, and never concealed or made any fraudulent

disposition of his property; none of which is denied by the plaintiff's evidence, except by the testimony of one witness.

The facts as shown by the testimony are that the defendant never sold or disposed of any property to hinder, delay, or defraud his creditors. That he denied the indebtedness to plaintiff was a right which the defendant had, and of itself is no ground for the issuance of an attachment. The refusal of the judge below to dissolve the attachment was clearly an abuse of discretion, which should be corrected by this court. The point raised by the appellant's counsel that the affidavit is made in the alternative was not taken in the court below, and we have concluded to pass that question, as there is sufficient ground to dissolve the attachment upon the evidence submitted.

The evidence on the trial of this case showed that the appellant on the twenty-sixth day of March, 1863, bought an undivided half interest in the pack train of one James Malony, for which he gave the note sued on in the plaintiff's complaint; that the...