Malcolm Sav. Bank v. Cronin

• Decision Date: 05 December 1907
• Docket Number: No. 15,011.,15,011.
• Citation: 114 N.W. 158,80 Neb. 228
• Parties: MALCOLM SAVINGS BANK, MALCOLM, IOWA, v. CRONIN.
• Court: Nebraska Supreme Court

80 Neb. 228

114 N.W. 158

MALCOLM SAVINGS BANK, MALCOLM, IOWA,

v.CRONIN.

No. 15,011.

Supreme Court of Nebraska.

Dec. 5, 1907.

Syllabus by the Court.

Affidavits taken and subscribed before a notary public, who is also an attorney in the case, cannot be used in support of an attachment issued therein against the objections of the defendant.

The courts of this state are not bound by the rules of evidence adopted in another jurisdiction, but must be governed in the admission of evidence by the law prescribed by our own Legislature.

Commissioners' Opinion. Department No. 1. Appeal from Cross District Court, Holt County; Harrington, Judge.

Action by the Malcolm Savings Bank, Malcolm, Iowa, against D. J. Cronin. From the judgment, plaintiff appeals, and defendant brings cross-appeal. Order dissolving attachment affirmed.R. R. Dickson, for plaintiff.

Arthur F. Mullen, for defendant.

DUFFIE, C.

The plaintiff commenced this action on a promissory note executed by the defendant James to Duffus, a resident of Poweshiek county, Iowa, September 30, 1905. The note is for $2,110, and represents the purchase price of certain registered cattle bought by Cronin from Duffus on the date the note was given. This note Duffus sold and transferred to the Malcolm Savings Bank. The plaintiff, at the time of commencing the action, obtained an attachment against the property of the defendant, alleging as grounds therefor “that the defendant fraudulently contracted the debt for which suit has been brought, and that the defendant fraudulently incurred the obligation for which suit has been brought.” Defendant filed a motion to dissolve the attachment, alleging, among other grounds, that the statement of facts in the affidavit therefor were untrue. This motion came on for hearing before the court November 17, 1906, and an order was then entered requiring plaintiff to file his affidavits in support of the attachment by November 26th, and, giving the defendant until December 1, 1906, the plaintiff was allowed until December 10th to file counteraffidavits, and on December 11, 1906, the motion was heard by the court upon affidavits filed by the parties, and the attachment dissolved. The plaintiff has appealed from the order dissolving the attachment, and the defendant has filed a cross-appeal, complaining of the action of the court in receiving certain affidavits offered by the plaintiff in support of its attachment.

The cattle for which the note in suit was given were purchased by Cronin in Poweshiek county, Iowa, at a sale of fine stock had by Duffus. One A. P. Meigs was clerk at the sale. The affidavits of Duffus and Meigs were used in support of the attachment, and are to the effect that in order to obtain credit on his purchase, and to induce Duffus to accept this note, Cronin represented to them that he was the owner of 1,200 acres of land in Holt county worth $20 an acre; that it was free and clear of all liens, except a mortgage of $5,000; that he was the owner of a large number of fine cattle, horses, and other valuable property, which were free and clear of all liens; and that the $5,000 incumbrance upon his land was his only indebtedness. These were the prinicpal affidavits offered in support of the attachment, and the only ones tending to show any false or fraudulent representations made by the defendant to obtain credit. These affidavits were taken in Iowa before H. E. Boyd, a notary public, who was also an attorney of record in this case. When these affidavits were offered in evidence, the defendant objected to their introduction, for the reason that t...