Malcom Savings Bank v. Cronin

• Decision Date: 05 December 1907
• Docket Number: 15,011
• Citation: 114 N.W. 158,80 Neb. 228
• Parties: MALCOM SAVINGS BANK, APPELLANT, v. D. J. CRONIN, APPELLEE. [*]
• Court: Nebraska Supreme Court

114 N.W. 158

80 Neb. 228

MALCOM SAVINGS BANK, APPELLANT, v. D. J. CRONIN, APPELLEE. ^[*]

No. 15,011

Supreme Court of Nebraska

December 5, 1907

APPEAL from the district court for Holt county. JAMES J. HARRINGTON JUDGE. Affirmed.

Affirmed.

R. R Dickson, for appellant.

Arthur F. Mullen, contra.

DUFFIE C. EPPERSON and GOOD, CC., concur.

OPINION

DUFFIE, C. J.

The plaintiff commenced this action on a promissory note executed by the defendant to James 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 Malcom 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 26, and giving the defendant until December 1, 1906; the plaintiff was allowed until December 10 to file counter affidavits, 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 principal 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 they were executed before a notary public who appeared as counsel in the case, and he further moved to strike the affidavits from the file for the same reason. The court overruled both the objection and the motion to strike the affidavits from the file, to which ruling an exception was entered.

It was a rule of common law that affidavits taken before an attorney in the case could...