Meyer v. Zingre

• Decision Date: 01 December 1885
• Citation: 25 N.W. 727,18 Neb. 458
• Parties: MEYER AND ANOTHER v. ZINGRE.
• Court: Nebraska Supreme Court

18 Neb. 458

25 N.W. 727

MEYER AND ANOTHER

v.ZINGRE.

Supreme Court of Nebraska.

Filed December 1, 1885.

Error from Dodge county.

E. F. Gray, for plaintiffs.

W. H. Munger and N. H. Bell, for defendant.

COBB, C. J.

The plaintiffs sued out an attachment against the defendant in the county court of Dodge county upon an indebtedness consisting of a promissory note, executed and delivered by the defendant to the plaintiffs for the sum of $330.11, and a balance of account for goods sold amounting to $51.09. The grounds of attachment, as set out in the affidavit, were “that the said defendant has assigned, removed, and disposed of a part of her property with intent to defraud her creditors; and that said defendant is about to assign, remove, and dispose of a part of her property with the intent to defraud her creditors; and that said defendant has converted a part of her property into money with the intent to defraud her creditors, and with intent to place it beyond the reach of her creditors; and that said defendant is about to convert a part of her property into money for the purpose of placing it beyond the reach of her creditors, and with intent to defraud her creditors; and that said defendant fraudulently contracted the debt, and incurred the obligation, for which this suit is brought.” The defendant moved in the said county court to discharge the said attachment upon affidavits filed with such motion. The plaintiffs filed affidavits in resistance. The motion was heard thereon, and the court decided the same in favor of the defendant, and discharged the said attachment. Thereupon the matter was taken to the district court of said county on error; was argued to said district court, by which the said judgment of the county court was affirmed; and thereupon the plaintiffs bring the cause to this court on error.

Although presented in several different ways, there is but one error presented, to-wit, that the district court erred in affirming the judgment of the county court dismissing the order of attachment. Upon a thorough examination of the pleadings and affidavits, as well those in resistance as those in support of the motion, and the authorities cited on either side, in the consultation room, we all come to the conclusion that, so far as all the grounds for attachment as contained in the original affidavit, except the last one, are concerned, the same being denied by the defendant and her agent, the evidence is so evenly balanced and conflicting as to render the judgment of the trial court conclusive thereon. In respect to the last clause of the original affidavit, to-wit, “that said defendant fraudulently contracted the debt and incurred the obligation,” etc., it is true that the same is in terms denied in the affidavits of the defendant, her husband, and son. Yet we do not think the denial sufficient in view of the affidavit in resistance of Ernest Schurman, one of...