Mitchell v. Carney
| Decision Date | 09 March 1889 |
| Parties | W. A. MITCHELL et al. v. EDWARD CARNEY et al |
| Court | Kansas Supreme Court |
Error from Cheyenne District Court.
THE opinion states the case. The plaintiffs in error bring here for review the refusal of the court, at the May term, 1887 to dissolve an order of attachment.
Judgment reversed and cause remanded.
W. B Ingersoll, and S. B. Decker, for plaintiffs in error.
Wilson & Hayes, for defendants in error.
OPINION
On the 5th day of August, 1886, the defendants in error commenced an action to recover the sum of $ 377.53 against the plaintiffs in error in the district court of Cheyenne county. At the same time they caused an attachment to be issued against the debtors and levied upon certain property belonging to them. The affidavit for attachment alleges two grounds: the first is, that the defendants have assigned and disposed of their property, to wit, their stock of drugs and their storeroom and lot in Bird City, or a part thereof, with intent to defraud, hinder and delay their creditors; the second is that the defendants have failed to pay the price or value of any article or thing delivered, as set forth in said bill of particulars, which by contract they were bound to pay in thirty or sixty days from the date of delivery. On the 9th day of May the defendants filed their motion to dissolve said attachment, which motion contained this allegation, verified under oath by Mitchell: the defendants say that they deny the allegation in said affidavit for attachment, that they, or either of them, have assigned or disposed of their property or any part thereof with the intent to defraud, hinder or delay their creditors. Thereupon this motion came on to be heard by the court, on the evidence of the defendants, the plaintiffs having refused to introduce any evidence. The defendants produced five witnesses who were examined at length and gave a detailed account of the sale of the drug stock, the lot and store-room, to persons whom they claimed had loaned them money; from whom they had bought merchandise; to whom they were indebted for board on other accounts. The creditors who purchased the drug-store stock and lot were also examined. A real-estate agent was examined, and he testified that the price paid for the lot and store-room was about its full value. The plaintiffs again refused to offer any evidence, and the matter was submitted to the court. The motion to dissolve the attachment was overruled by the court, and an exception to the ruling duly taken. ...
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...or greater weight of the evidence. McPike v. Atwell, 34 Kan. 142, 8 P. 118; Becker v. Langford, 39 Kan. 35, 17 P. 648; Mitchell v. Carney, 41 Kan. 139, 21 P. 158. evidence introduced by the plaintiff was very meager indeed. The affidavit for attachment was sworn to by J. W. Hocker, attorney......
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