Sterling Manuf'g Co. v. Hough

• Citation: 49 Neb. 618,68 N.W. 1019
• Parties: STERLING MANUF'G CO. v. HOUGH.
• Decision Date: 18 November 1896
• Court: Supreme Court of Nebraska

49 Neb. 618

68 N.W. 1019

STERLING MANUF'G CO.

v.HOUGH.

Supreme Court of Nebraska.

Nov. 18, 1896.

Syllabus by the Court.

1. A reasonable notice of the hearing of a motion to discharge an attachment is such notice as is meet and fair, in view of the circumstances and conditions existent at the time in the matter to be presented.

2. In a hearing of a motion to discharge an attachment, one of the grounds of which is the untruth of the allegations of the affidavit for attachment, where the evidence used at the hearing is conflicting, the conclusions of the judge who heard the matters announced from such evidence will not be disturbed, unless manifestly wrong.

Error to district court, Cuming county; Norris, Judge.

Action by the Sterling Manufacturing Company against Frank Hough. From an order dissolving the attachment, plaintiff brings error. Affirmed.M. McLaughlin, for plaintiff in error.

C. C. McNish, for defendant in error.

HARRISON, J.

In this action, instituted in the district court of Cuming county, an order of attachment was procured to issue, and was levied on personal property. A motion to discharge the attachment was filed for defendant, and on hearing before a judge at chambers the attachment was discharged. The order then made is the burden of the complaint in the error proceedings prosecuted to this court. The certificate of the clerk of the district court attached to the record is to the effect that the affidavit for attachment is a part of the transcript filed here. We have searched the record, and do not find the affidavit, or a copy of it; but counsel for defendant in error makes no complaint of this. On the contrary, he states in his brief that the grounds of the affidavit were as follows: “That the defendant, Frank Hough, 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 that he has assigned or disposed of his property or a part thereof with intent to defraud his creditors.” And we will accept these as the material allegations of the affidavit in our consideration of the questions presented.

It is urged that there was not sufficient notice given of the hearing on the motion to dissolve the attachment. In section 235 of our Code of Civil Procedure, in regard to notice of a motion to discharge an attachment, it is provided: “The defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment as the whole or a part of the property attached.” And under the general head of “Motions and Orders,” in section 574 of the Code, it is said, in relation to notice: “Where notice of a motion is required, * * * it shall be served a reasonable time before the hearing.” The contention here is that notice of the motion was not given “a reasonable time before the hearing.” If we were to be governed by the statements of the record as to this point, we would feel constrained to hold that it establishes that the plaintiff was represented at the hearing. The journal entry of the order made contains the following: “To all of which the said plaintiff then and there duly excepted, and asked and obtained 20 days in which to prepare and file in the supreme court of the state of Nebraska its petition in error, upon executing an undertaking as required by law.” And in the bill of exceptions it appears: “Be it remembered that on the trial and hearing of the cause * * * on the motion to dissolve the attachment, * * * the plaintiff, to maintain the issues on his part, read in evidence the affidavits of [here follow a list of affidavits], all of which said affidavits are hereto attached and made a part hereof. Whereupon the plaintiff rested.” But it appears from statements of counsel in the briefs filed in this court that the plaintiff was not present at the hearing, either by counsel or any other person. Affidavits were filed in support of the motion, and also to sustain the...