German Bank v. Folds

• Decision Date: 28 October 1896
• Citation: German Bank v. Folds, 9 S.D. 295, 68 N.W. 747 (S.D. 1896)
• Parties: GERMAN BANK v. FOLDS et al.
• Court: South Dakota Supreme Court

9 S.D. 295

68 N.W. 747

GERMAN BANK

v.FOLDS et al.

Supreme Court of South Dakota.

Oct. 28, 1896.

Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.

Action of attachment by the German Bank against Robert W. Folds and George W. Folds, co-partners doing business as Folds Bros. From an order dissolving the attachment, plaintiff appeals. Affirmed.Joe Kirby, for appellant. John E. Carland, for respondents.

HANEY, J.

Plaintiff appeals from an order discharging an attachment issued in an action upon a past-due debt. It was based upon an affidavit stating the following grounds: “That the defendants have assigned, disposed of, and secreted, or are about to assign, dispose of, and secrete, their property, with the intent to defraud their creditors; and that the debt was incurred for property obtained under false pretenses; and, further, are about to remove their property with the intent and to the effect of cheating and defrauding their creditors, and hindering and delaying them in the collection of their debts,-all of which applies to plaintiff's claim.” The traversing affidavit was as follows: “That the language and facts therein stated [referring to plaintiff's affidavit for attachment] are false and untrue, and known to be so by said Schaetzel [the person making it]; that these affiants have not, individually or jointly, assigned, disposed of, or secreted any of their property whatever; have not been, and are not now, about to assign, dispose of, or secrete their property, with intent to defraud their creditors; and these deponents have not at any time obtained the property of the plaintiff under false pretenses; and that deponents have never, and are not, about to remove any of their property from the county of Minnehaha or state of South Dakota, with the intent or to the effect of cheating or defrauding their creditors, or for any other purpose; nor are they about to remove or dispose of any of their property for the purpose of hindering and delaying their creditors in the collection of their debts or for any other purpose; and that said affidavit of said William Schaetzel, so far as herein specified, is absolutely false and untrue.” As it is shown by plaintiff's affidavit that its claims were all due when the attachment issued, the allegation beginning “and are about to remove their property with the intent,” etc., requires no denial, as it is only applicable to a debt not due. Comp. Laws, § 5014, subsec. 4. It fails...