Salmon v. Mills, 545.

• Decision Date: 20 May 1895
• Docket Number: 545.
• Citation: 68 F. 180
• Parties: SALMON v. MILLS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

68 F. 180

SALMON v. MILLS et al.

No. 545.

United States Court of Appeals, Eighth Circuit.

May 20, 1895

George E. Nelson filed brief for plaintiff in error.

Nelson Case (W. B. Glasse, on the brief), for defendants in error.

This was a suit by G. Y. Sal on against Abram Mills and Jackson Mills to recover judgment on two promissory notes. An attachment was levied upon certain property, and thereupon one C. M. Condon obtained leave to intervene, asserting that he was the owner of the attached property. The issue on the attachment was tried by jury, and found for the plaintiff. The court granted a new trial, and afterwards, on motion to vacate the attachment, held that the affidavit upon which the attachment was issued was insufficient. Plaintiff then moved to amend the same, which motion was denied. He thereupon brought the case on error to this court, which on February 1 1892, reversed the judgment, with instructions to permit the plaintiff to amend the affidavit. 1 C.C.A. 278, 49 F. 333. The amendments were accordingly, made, whereupon, on motion of defendant, the second and third grounds of attachment alleged therein were stricken out, and plaintiff was compelled to proceed to trial upon a single ground of attachment. This ground was not sustained by the evidence and the attachment was accordingly dissolved. Plaintiff again brought the case on error to this court. Defendants heretofore moved to dismiss the writ of error on the ground that the judgment below was not a final judgment, but the motion was denied. 13 C.C.A. 372, 66 F. 32. The case has now been heard on the merits.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This case was before this court at a former term, and is reported in 4 U.S.App. 101, 1 C.C.A. 278, 49 F. 333. Before the case was retried, G. Y. Salmon, the plaintiff in error, who was also the plaintiff in the trial court, filed an amended affidavit for an attachment, alleging therein the following grounds, to wit:

'First, that the above-named defendants are about to remove and have removed their property, or a material part thereof, out of the Indian Territory, not leaving enough therein to satisfy the plaintiff's claim or the claim of defendant's creditors; second, that they have sold, conveyed, and otherwise disposed of their property, and suffered and permitted it to be sold, with the fraudulent intent to cheat, hinder, and delay their creditors; third, and that they are about to sell, convey, and otherwise dispose of their property with such intent.'

These are declared to be grounds of attachment by the Arkansas statute concerning attachments, which has been extended over and is in force in the Indian Territory. Mansf. Dig. Ark. c. 9 Sec. 309, subds. 6-8.

The defendants moved to strike out the second and third grounds of attachment above stated because they were inconsistent and rendered the affidavit uncertain and misleading, which motion was sustained by the trial court. The plaintiff was thereupon compelled to proceed to trial on an affidavit which alleged but a single ground of attachment. The single ground of attachment not having been sustained by the evidence, the attachment was dissolved and the case has been brought to this court on a writ of error. An exception was duly taken to the action of the trial court in sustaining the motion to strike out the second and third grounds of attachment, and its action in that behalf is the only...