Godbe-Pitts Drug Co. v. Allen

• Decision Date: 01 April 1892
• Citation: 8 Utah 117,29 P. 881
• Court: Utah Supreme Court
• Parties: GODBE-PITTS DRUG COMPANY, APPELLANT, v. JOEL F. ALLEN, RESPONDENT

29 P. 881

8 Utah 117

GODBE-PITTS DRUG COMPANY, APPELLANT, v. JOEL F. ALLEN, RESPONDENT

Supreme Court of Utah

April 1, 1892

APPEAL from an order discharging an attachment of the district court of the third district. The opinion states the facts.

AFFIRMED.

Mr Charles O. Whitlemore, for the appellant.

Mr Jabez G. Sutherland, for the respondent.

MINER J. ANDERSON, J., and BLACKBURN, J., concurred.

OPINION

MINER, J.

Plaintiff commenced suit by attachment against the defendant, September 22, 1891, for the purpose of securing payment of the sum of $ 322, alleging as the ground therefor "that the defendant is about to assign and dispose of his property with intent to defraud his creditors, and that said defendant has already assigned and disposed of a portion of his property with intent to defraud his creditors. "The writ was issued and on October 2, 1891, the marshal attached property of defendant. On September 30, 1891, the defendant filed his motion to dissolve the attachment and discharge the levy on the ground that the writ was improperly and irregularly issued, and that no cause whatever existed for the issuing of the same. This motion was based upon the affidavit of the defendant and Boyd Park, fully denying all the alleged grounds for the attachment. It also appears that prior to the attachment the defendant had borrowed $ 9,665 from William F. Jones, giving his note therefor; that Boyd Park indorsed said note as an accommodation maker, for which defendant had agreed to secure him; and that to carry out this agreement defendant had executed to Boyd Park a mortgage upon his stock in trade for that amount, for no other purpose than to secure the payment of an honest indebtedness; that a considerable sum was due on the note, and no part of it had been paid when the mortgage was given to secure it, It also appears that there was a clause in the mortgage authorizing the mortgagee or his assigns to take possession of the mortgaged property on default of any payment, and proceed to foreclose the same by suit or by sheriff's seizure and sale. The sheriff was also authorized, on request of the mortgagee, to take possession and sell the property to satisfy the note and costs. After the delivery of said mortgage to Park the store of the defendant was closed, and the property placed in the hands of the sheriff, as trustee, to sell and dispose of it as provided in the mortgage. On October 5, 1891, the property was sold to Boyd Park to satisfy his claim. The attachment was levied on property...