McCord-Brady Co. v. Bowen

• Decision Date: 21 April 1897
• Citation: 51 Neb. 247,70 N.W. 950
• Parties: MCCORD-BRADY CO. v. BOWEN.
• Court: Nebraska Supreme Court

51 Neb. 247

70 N.W. 950

MCCORD-BRADY CO.

v.BOWEN.

Supreme Court of Nebraska.

April 21, 1897.

Syllabus by the Court.

1. Under section 235, Code Civ. Proc., defendant may, at any time before judgment, upon reasonable notice to plaintiffs, move to dissolve an attachment; and the fact that the attached property does not belong to the defendant, or is incumbered for its full value, does not bar or estop him from filing a motion to discharge.

2. An attaching plaintiff is estopped to assert that the defendant has not sufficient interest to defend against the attachment.

3. Smith v. Bowen (decided herewith) 70 N. W. 949, followed.

Error to district court, Greeley county; Thompson, Judge.

Action by McCord-Brady Company against George F. Bowen. From an order discharging the attachment, plaintiff brings error. Affirmed.Rich, O'Neill & Sears, T. J. Doyle, and J. R. Hanna, for plaintiff in error.

J. R. Swain, M. B. Gearon, and Heald & Leavens, for defendant in error.

NORVAL, J.

This is a proceeding to review an order of the district court dissolving an attachment issued upon an affidavit alleging substantially all the grounds for an attachment set forth in the statute. The motion to discharge assigns the following reasons therefor: (1) The facts stated in the attachment affidavit are insufficient to justify the issuing of the writ; (2) no action was pending when the affidavit for attachment was filed; (3) the statement of facts in said affidavit is untrue.

There is no merit in either of the first two grounds of the motion, since the attachment affidavit is sufficient in form and substance to authorize the granting of the writ, and the suit was brought and the attachment affidavit was filed simultaneously. The statute (section 198, Code Civ. Proc.) authorizes the issuance of an attachment against the property of the defendant at or after the commencement of an action. It is insisted in argument that the defendant was in no position to assail the attachment, because he had no residuary or contingent interest in the attached property at the time the motion was filed. This contention is predicated upon the fact that the defendant had incumbered the property by mortgages for more than its value and the mortgagees were in possession. But this does not preclude him from moving the dissolution of the attachment. Section 235 of the Code of Civil Procedure provides that “the defendant may at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment, as to a whole or a part of the property attached.” The legislature, it is clear, has not, by the provision quoted, limited the right to urge the discharge of an attachment to a defendant who had not parted with the title and possession of the property attached. But the right to move for the dissolution of an attachment by controverting the grounds upon which the writ was issued is conferred upon every attachment debtor. In Salmon v. Mills, 1 C. C. A. 278, 49 Fed. 333, the circuit court of appeals ruled, under a statute similar to ours, that an attaching defendant may move to vacate an attachment notwithstanding he disclaims any interest in the property. In Claussen v. Easterling, 19 S. C. 515, Chief Justice Simpson, in delivering the opinion of the court, observed: “As to the ground most strongly urged by appellant, that, defendant having admitted that the property attached did not belong to him, he could not move to dissolve the attachment, we do not see the application here. The motion below was made on the ground that the property in question did not belong to the defendant. The title to the property was not in issue. The attachment was issued on an allegation of fraud by the defendant, and the only question involved below was the truth of that allegation. If, because that allegation being found untrue, the attachment is vacated, and incidentally thereby the property is released, that is a result which does not concern the defendant. He certainly should not be compelled to submit to the charge of fraud, when he has the means of overthrowing it, simply because, if he should do so, some one else may be benefited.” Keith v. Armstrong, 65 Wis. 225, 26 N. W. 445, was an appeal by the plaintiffs from an order vacating and discharging an attachment. The ground for the attachment was that the defendants had assigned, conveyed, and disposed of their property for the purpose of defrauding their creditors. The defendants having made a voluntary assignment of their property for the benefit of their creditors, it was urged that the defendants had no right to traverse the affidavit for attachment. The supreme court overruled this contention. Of the same purport are Bank v. Randall, 38 Minn. 382, 37 N. W. 799;Tolerton v. Casperson (S. D.) 63 N. W. 908.

The supreme court of Kansas has decided that a defendant is not estopped from filing a motion to discharge an attachment upon the ground that the affidavit upon which the writ was issued is false and untrue, merely because he had executed chattel mortgages to various creditors upon the property attached. Shoe Co. v. Derse, 41 Kan. 150, 21 Pac. 167;Hosea v. McClure, 42 Kan. 403, 22 Pac. 317. The defendant should be permitted to move for the vacation of an attachment if, as between himself and the plaintiff, he is entitled to a discharge of the writ. Such right is given by statute, and it cannot be taken from him under the guise of judicial interpretation. Instead of the defendant being estopped, by the giving of the mortgage, from insisting on a dissolution, the...