Salmon v. Mills

• Decision Date: 01 February 1892
• Citation: 49 F. 333
• Parties: SALMON v. MILLS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

49 F. 333

SALMON v. MILLS et al.

United States Court of Appeals, Eighth Circuit.

February 1, 1892

George E. Nelson, for plaintiff in error.

Nelson Case and W. B. Glasse, for defendants in error.

Before CALDWELL, Circuit Judge, and SHIRAS and THAYER, District Judges.

SHIRAS District Judge.

On the 2d day of May, 1889, the plaintiff in error filed in the United States court for the Indian Territory a complaint at law, wherein he sought judgment against Abraham and Jackson Mills for the sum of $9,983, claimed to be due on two promissory notes, and in aid of such action he sued out a writ of attachment against the property of the defendants above named. The grounds alleged for the issuance of the attachment were set forth in the affidavit accompanying the complaint in the following form:

'That said Abraham Mills and Jackson Mills 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 plaintiff's claim or the claim of said defendants' creditors; second, have sold conveyed, and otherwise disposed of their property, and suffered and permitted it to be sold, with the fraudulent intent to cheat, hinder, or delay their creditors; or third, are about to sell and convey or otherwise dispose of their property with such intent.'

The writ was issued and served by levying upon certain cattle and horses; and thereupon one C. M. Condon, claiming to be the owner of the property levied on, save one horse, obtained leave to interplead in the cause and assert his right to the attached property. On the 3d day of June, 1889, the defendants filed a motion to vacate and discharge the order for the attachment and all proceedings had thereunder on the grounds that the affidavit filed for the attachment was insufficient, the bond filed was illegal, and the grounds set forth in the affidavit for the attachment were not true in point of fact. Subsequently the defendants filed answers to the attachment proceedings, in which they traversed the several grounds set forth in the affidavit already quoted, and claimed damages for the injury alleged to have been caused them by reason of the wrongful issuance of the writ. On the 24th day of May, 1890, judgment was entered in favor of the plaintiff for the sum shown to be due on the note sued on, and against the defendants, but expressly reserving for future determination all questions arising on the attachment proceedings and the interplea filed by C. M. Condon. In December, 1890, a trial was had before the court and jury upon the issues arising upon the answer to the attachment proceedings and upon the interplea, and on the 15th of December, 1890, the jury returned a verdict in favor of the plaintiff, Salmon, on all the issues thus submitted. On the 22d of December, 1890, the court, on motion, set aside this verdict, and granted a new trial to the defendants and the interpleader. On the 4th day of June, 1891, the defendants called up their motion to vacate the attachment, and upon the hearing thereof the court sustained the same, the plaintiff duly excepting thereto, and thereupon the plaintiff asked leave to amend the affidavit for attachment by substituting the word 'and' for 'or' between the second and third grounds of attachment as set forth in the affidavit hereinbefore quoted; but the court refused leave so to do, holding that the affidavit for attachment was not amendable, and that, even if it was permissible to amend same, the court found, from the evidence adduced on the former trial, that to allow the amendment would not be in furtherance of justice, to which ruling the plaintiff excepted, and thereupon the court vacated the attachment and the levy made thereunder. To reverse this ruling and order the plaintiff sued out a writ of error from this court.

The first point made on behalf of the plaintiff in error is that the defendants, by filing affidavits controverting the truth of the allegations of fact contained in the affidavit for the attachment, and going to trial on the issues thus presented, waived their right to be heard on the motion to discharge the writ previously filed. The act of congress of May 2, 1890, put in force in the Indian Territory certain portions of the statutes of Arkansas, including the chapter regulating the issuance of writs of attachment, and the modes of vacating such writs when issued, and of controverting the truth of the facts averred as grounds for the issuance thereof. Section 383, c. 9, of Mansfield's Digest of the Statutes of Arkansas, provides--

'That, at any time before the attachment is sustained, the defendant, upon reasonable notice to the plaintiff or his attorney, may move the court to discharge the attachment, the hearing of which may be postponed by the court, upon sufficient cause, from time to time; and on the hearing, if the court is of the opinion that the attachment was obtained without sufficient cause, or that the grounds of the attachment, being controverted, are not sustained, the attachment shall be discharged.'

Section 381 provides that--

'The defendant may file his affidavit denying all the material statements of the affidavit on which the attachment is issued, and thereupon the attachment shall be considered as controverted, and the affidavits of the plaintiff and defendant shall be regarded as the pleadings in the attachment, and shall have no other effect.'

Therefore to make an issue upon the truth of the facts alleged in the affidavit for the...