Olds Wagon Co. v. Benedict

• Decision Date: 04 January 1889
• Citation: 25 Neb. 372,41 N.W. 254
• Parties: OLDS WAGON CO. v. BENEDICT.
• Court: Nebraska Supreme Court

25 Neb. 372

41 N.W. 254

OLDS WAGON CO.

v.BENEDICT.

Supreme Court of Nebraska.

Jan. 4, 1889.

Syllabus by the Court.

1. Affidavits used at the hearing of a motion to dissolve an attachment will not be considered in this court on error, unless preserved by a bill of exceptions.

2. When a defendant moves to dissolve an attachment, and denies the ground thereof by affidavit, the burden of sustaining the attachment is upon the plaintiff, and for that purpose he is entitled to open and close the argument. A denial of this right held ground of reversal.

Error to district court, Hitchcock county; COCHRAN, Judge.Atkinson & Doty, for plaintiff in error.

W. S. Morlan, for defendant in error.

COBB, J.

This is an action in attachment, brought by the plaintiff in error against the defendant in error in the district court of Hitchcock county. The grounds laid for the attachment by the plaintiff are those provided for in section 198 of the Code, as follows: That the defendant has absconded with the intent to defraud his creditors; and has left the county of his residence to avoid the service of a summons; and so conceals himself that a summons cannot be served upon him; and is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors; and is about to convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors; and has property rights in action which he conceals; and has assigned, removed, or disposed of, or is about to dispose of, his property, or a part thereof, with the intent to defraud his creditors; and fraudulently contracted the debt or incurred the obligation for which suit has been brought. Defendant moved to dissolve the attachment. First, because the facts stated in the affidavit are not sufficient to justify the issuing of the same; second, because the facts stated in the affidavit are untrue. Upon a hearing, the judge found in favor of the defendant, and ordered the attachment to be dissolved. The plaintiff alleges error in said proceedings and order, as follows: First, the court erred in deciding that the plaintiff was not entitled to open and close the case, which was to its prejudice; second, the court erred in overruling the motion to quash the proceedings, because the evidence on file showed that the defendant did not have such an interest in all the goods attached as gave him the right of possession to all of them, if the attachment was dissolved, as he had prayed; third, the court erred in not sustaining the said attachment, under the evidence, in that the said defendant, at the time the attachment issued, was about to convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors; fourth, the court erred in not deciding that, under the evidence, it was shown that at the time the attachment issued the defendant had property and rights in action which he concealed, with intent to defraud his creditors; fifth, the court erred in not deciding that, under the evidence, it appeared that at the time the attachment issued the defendant had assigned, removed, and disposed of, and was about to remove and dispose of, his property, or a portion thereof, with intent to defraud his creditors; sixth, the court erred in not deciding that, under...