Parmer v. Keith

• Decision Date: 29 May 1884
• Citation: 20 N.W. 103,16 Neb. 91
• Parties: PARMER v. KEITH.
• Court: Nebraska Supreme Court

16 Neb. 91

20 N.W. 103

PARMER

v.KEITH.

Supreme Court of Nebraska.

Filed May 29, 1884.

Error from Madison county.

Brome & Durland, for plaintiff.

N. A. Rainbolt, for defendant.

MAXWELL, J.

This is an action for malicious attachment. On the trial of the cause in the court below a verdict was rendered in favor of the defendants, and the action dismissed.

The principal error relied upon in this court is that the verdict is against the weight of evidence. The testimony tends to show that the plaintiff was doing business at Norfolk; that he was indebted to the defendant somewhat in excess of $1,800, which was past due; that the claim was sent to an attorney at Norfolk, who called upon the plaintiff, and informed him that he wanted the claim paid or secured. The plaintiff stated that he could not pay it then. A proposition was then made to him to secure it by assigning accounts or in some other way, which was refused. There is other testimony in the record to which it is unnecessary to refer. After a delay of nearly two weeks, no satisfactory arrangement having been made, an attachment was levied upon the plaintiff's stock of goods. In a few days his friends intervened and secured the debt, when the attachment was released.

The principal ground upon which damages are claimed is for injury to the plaintiff's credit. The mere inability of a debtor to pay his debts will not justify proceedings by attachment. To authorize such proceedings there must exist, at least, one of the statutory grounds, such as fraudulently contracting the debt, where the debtor absconds or conceals himself so that summons cannot be served upon him, or is removing, or converting his property into money, with the intent to defraud his creditors. But while inability to pay debts is no just cause for an attachment, it may be a material circumstance as tending to prove that the debtor is converting his property into money, or concealing it, for the purpose of placing it beyond the reach of his creditors. The question of fraudulent intent is one of fact to be submitted to a jury, whose finding can only be reviewed in some of the modes provided by law. The jury have found against the plaintiff on that question, and the weight of testimony is not so great against the verdict as to justify us in setting it aside. In order to maintain an action for malicious attachment the proceedings must have been instituted maliciously, and without probable cause. Three things are necessary...