Rosenberg v. Burnstein

• Decision Date: 08 January 1895
• Citation: 60 Minn. 18,61 N.W. 684
• Parties: ROSENBERG ET AL. v. BURNSTEIN ET AL.
• Court: Minnesota Supreme Court

60 Minn. 18

61 N.W. 684

ROSENBERG ET AL.

v.BURNSTEIN ET AL.

Supreme Court of Minnesota.

Jan. 8, 1895.

(Syllabus by the Court.)

1. Where a writ of attachment is issued in an action against two defendants as partners, on the motion of one of them to dissolve the attachment, held, it is no ground for dissolving the same that the property levied is his individual property; that he is not a partner with the other, and never contracted and does not owe the debt. But held, evidence of these facts is material to show that he is not responsible for the fraudulent acts and intent of the other defendant, which was made one of the grounds of the attachment.

2. Held, an order dissolving an attachment will not be reversed where the affidavits used on the motion are conflicting, unless the clear preponderance of evidence is opposed to the decision of the court below.

3. Where, on such a motion, the counter affidavits clearly and specifically state a sufficient badge of fraud, held, the same is not overcome or sufficiently contradicted by the general statements in the moving affidavits denying fraud.

Appeal from district court, Hennepin county; Seagrave Smith, Judge.

Action by Harris Rosenberg and others against Moses Burnstein and another for goods sold and delivered, in which plaintiffs sued out a writ of attachment. From an order dissolving the writ, plaintiffs appeal. Reversed.John Gruenberg, for appellants.

Child & Fryberger, for respondents.

CANTY, J.

This is an appeal from an order dissolving a writ of attachment. The complaint and affidavit for attachment aver that during all the time therein stated the defendants were partners, and that between the 18th of September, 1893, and the 27th of November, 1893, plaintiffs sold and delivered to them merchandise of the value of $325.28, and that there is yet due therefor the sum of $146.77. The affidavit for attachment further states “that the said defendants, and each of them, have assigned, secreted, and disposed of their property with intent to delay and defraud their creditors, and are about to assign, secrete, and dispose of their property with the same intent.”.

The motion to dissolve the attachment was made by defendant Wolinsky alone, on the grounds that plaintiffs had no cause of action against him, and the property levied on under the writ is his individual property, and on the further ground that said affidavit is false, and he did not, and was not about to, assign, secrete, and dispose of any of his property with any such intent. The motion is supported and opposed by affidavits. The order granting the motion does not state on what ground it is granted. The claims of Wolinsky that the property attached was his individual property; that he never was a partner with Burnstein, and did not contract, and was not liable for, the debt,-are none of them grounds for dissolving the attachment. Davidson v. Owens, 5 Minn. 69 (Gil. 50); Drake, Attachm. (6th Ed.) § 418. But still the statement of these facts in Wolinsky's affidavits is material, as going to show that he is not responsible for the alleged fraudulent acts and intents of Burnstein, as to which acts and intents the affidavit of attachment is not contradicted, or in any manner rebutted. Wolinsky, in his affidavit, denies that he ever assigned, secreted, or disposed of his property, or ever was about to assign, serete, or dispose of his property, with any such intent, and states that he is not acquainted with plaintiffs, and never had any business dealings with either of them. Burnstein made an affidavit in which he states that he knows, of his own knowledge,...