Murphy v. Purdy

• Decision Date: 01 January 1868
• Parties: JOHN MURPHY v. DANIEL PURDY.
• Court: Minnesota Supreme Court

13 Minn. 390

JOHN MURPHY

v. DANIEL PURDY.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the district court, Winona county, vacating a writ of attachment.

C. G. Ripley, for appellant.

E. Hill, for respondent.

McMILLAN, J.

This is an appeal from an order vacating an attachment, on the ground of the insufficiency of the affidavit.

The affidavit upon which the attachment was allowed stated as the ground for the attachment, "that the defendant, as deponent verily believes, is about to assign, secrete, or dispose of his property, with intent to delay and defraud his creditors." The statute in force at the time regulating the allowance of writs of attachment, so far as applicable to this case, is the following language:

"The writ of attachment shall be allowed whenever the plaintiff, his agent or attorney, shall make affidavit that a cause of action exists against the defendant, specifying the amount of the claim and the ground thereof; and that the plaintiff's debt was fraudulently contracted, or that the defendant is either a foreign corporation, or not a resident of this state, or has departed therefrom, as deponent verily believes, with intent to defraud or delay his creditors, or to avoid the service of a summons, or keeps himself concealed therein with like intent, or has assigned, secreted, or disposed of, or is about to assign, secrete, or dispose of his property with intent to delay or defraud his creditors." Laws 1867, c. 66, § 1, p. 110.

This is an amendment of, and substitute for, section 130, tit. 9, c. 66, Gen. St.

Under the original statute, which provided that the warrant may be issued "whenever it appears by affidavit that a cause of action exists," etc., it was held that the facts upon which the writ is based must be made to appear by legal evidence. See Curtis v. Moore, 3 Minn. 29, (Gil. 7.) The question to be determined is whether the statements in the affidavit are to be positive, as of the affiant's knowledge, or whether a statement of the belief of the fact by him is sufficient. It is evident that if the statute is so construed as to require a positive statement of the facts required as a basis for the attachment, it would be a great modification of the original statute, and it could not be said that the change would be without purpose. We are then to refer for the intention of the legislature to the language of the law itself, and if that is plain and unambiguous, we must follow it.

There would seem to be no...