Jones v. Hoefs

• Decision Date: 19 May 1905
• Parties: JONES v. HOEFS et al.
• Court: North Dakota Supreme Court

14 N.D. 232

103 N.W. 751

JONES

v.HOEFS et al.

Supreme Court of North Dakota.

May 19, 1905.

Syllabus by the Court.

1. Where the defendant gives notice of motion to dissolve an attachment, and the notice recites that the motion will be based upon an affidavit served therewith, which denies the truth of the attachment affidavit, the notice sufficiently shows that the ground for the motion to dissolve is that the attachment affidavit is raise.

2. Where the defendant denies the existence of the grounds for attachment, and moves to dismiss the attachment for that reason, the burden of proving that one or more of the grounds alleged for the attachment are true is upon the plaintiff, and if the plaintiff fails to prove the existence of such grounds the motion to dissolve must be granted, even though there is no defense to the action on the merits.

Appeal from District Court, Richland County; Charles A. Pollock, Judge.

Action by John R. Jones against Ferdinand Hoefs and Theodore Heling. Judgment for defendants, and plaintiff appeals. Affirmed.McCumber, Forbes & Jones, for appellant. J. A. Dwyer and Charles E. Wolfe, for respondents.

ENGERUD, J.

This is an appeal by plaintiff from an order of the district court vacating a writ of attachment on defendants' motion. The action was brought to recover on a promissory note executed by the defendants as partners. The plaintiff procured the issuance of the writ of attachment upon an affidavit, alleging as grounds therefor “that the defendants, Ferdinand Hoefs and Theodore Heling, above named, have sold, assigned, transferred, secreted, and mortgaged their property, and are about to sell, assign, transfer, and secrete their property, with intent to cheat and defraud their creditors, and to hinder and delay them in the collection of their debts.” The defendants answered the complaint, and at the same time served upon the plaintiff's attorneys a notice of motion to dissolve the attachment. The notice was entitled in the action, and read as follows: “You will please take notice: That the defendants in the above-entitled action, by their attorney, will on the first day of April, 1904, at two o'clock p. m. of said day, before the court at the chambers thereof, in the city of Wahpeton, in Richland county, North Dakota, move the court to dissolve and vacate the warrant of attachment issued in the above-entitled action; that the said motion will be made upon the affidavit of Ferdinand Hoefs, the answer of the defendants in this action, all of which are hereto attached, and upon all the files and records of the case.” The affidavit of Hoefs referred to in the notice and served with it, after setting forth in some detail facts tending to show that the defendants were solvent, and in good...