Tessier v. Lockwood Englehart & Co.

• Decision Date: 06 October 1885
• Citation: 24 N.W. 734,18 Neb. 167
• Parties: LEWIS TESSIER, PLAINTIFF IN ERROR, v. LOCKWOOD ENGLEHART & CO., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

24 N.W. 734

18 Neb. 167

LEWIS TESSIER, PLAINTIFF IN ERROR, v. LOCKWOOD ENGLEHART & CO., DEFENDANTS IN ERROR

Supreme Court of Nebraska

October 6, 1885

ERROR to the district court for Gage county. Tried below before BROADY, J.

AFFIRMED.

T. D Cobbey, J. E. Cobbey, and W. H. Ashby, for plaintiff in error, on insufficiency of affidavit for attachment, cited Wray v. Gilman, 1 Miles, 75. Culbertson v Cabeen, 29 Tex. 247. Maxwell's Justice, 1883 Ed., 185. Maxwell's Pl & Pr., 3d Ed., 499-500. Stacy v. Stichton, 9 Iowa 399. Kigel v. Schrenklenin, 37 Mich. 174. Drake Attachment, § 104. Wray v. Gilmore, 1 Miles, Pa., 75. Barnard v. Sibre, A. K. Mar., 580. Willis v. Lyman, 22 Tex. 268. On debt not due, cited: Cross v. McMackin, 17 Mich. 511. Drake, § 107. On foreign judgment, cited: Davenport v. Barnett, 51 Ind. 329. Story Confl. Laws, 8th Ed., 821. Mason v. Butchell, 101 U.S. 638. U. S. v. Denny, 6 Biss., 501. Child v. Powder Works, 45 N.H. 547. McGilvray v. Avery, 30 Vt. 538. Barnes v. Gibbs, 31 N.J.L. 320.

Burke & Prout and Hazlett & Bates, for defendants in error, cited: Ellison v. Tallon, 2 Neb. 15. Tallon v. Ellison, 3 Neb. 73. Hilton v. Ross, 9 Id., 409. Drake, §§ 102, 418. Tessier v. Crowley, 16 Neb. 369. King v. Vance, 46 Ind. 246. Maxwell v. Stewart, 22 Wall., 77. Waples Attachment, § 3, and cases cited in note 1.

OPINION

COBB, CH. J.

This action was commenced by the defendants in error against the plaintiff in error in the district court of Gage county, to recover the sum of $ 1,963.19, claimed to be due from plaintiff in error to defendants in error. At the time of commencing the action plaintiffs therein also filed an affidavit and undertaking for an order of attachment against the property of the defendant therein, which was issued, and property attached thereon. The defendant in said action filed his motion in the district court to dissolve the attachment and discharge the attached property, for reasons therein stated, which motion was overruled. Defendant then filed his answer; a trial was had to a jury, with a verdict and judgment for the plaintiffs. A motion for a new trial being overruled, the defendant brings the cause to this court on error. The first error assigned is, "tat the court erred in overruling the motion to dissolve the attachment and discharge the attached property."

The affidavit for the order of attachment is set out in the record as follows:

"STATE OF NEBRASKA, "GAGE COUNTY.

"John A. Johnson, one of the plaintiffs, being first duly sworn, deposes and says that he has commenced an action in the district court of Gage county against Louis Tessier, to recover the sum of $ 1,963.19 now due and payable to the plaintiffs from the defendant on account for goods, wares, and merchandise sold and delivered by the plaintiffs to the defendant, at his special instance and request.

"Affiant says that the said claim is just, and he ought as he verily believes to recover thereon the sum of $ 1963.19, and that the defendant, Louis Tessier, has assigned, removed, or disposed of his property, or is about to dispose of his property, or a part thereof, with the intent to defraud his creditors, and has rights of action which he conceals." Subscribed and sworn to.

The provision of statute under which the said order of attachment was issued is as follows:

"Sec. 198. The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon the grounds herein stated: First. When the defendant, or one of several defendants, is a foreign corporation or a non-resident of this state; or Second. Has absconded with the intent to defraud his creditors; or Third. Has left the county of his residence to avoid the service of a summons; or Fourth. So conceals himself that a summons cannot be served upon him; or Fifth. Is about to remove his property or a part thereof out of the jurisdiction of the court with the intent to defraud his creditors; or Sixth. Is about to convert his property or a part thereof into money for the purpose of placing it beyond the reach of his creditors; or Seventh. Has property or rights in action which he conceals; or Eighth. Has assigned, removed, or disposed of, or is about to dispose of his property or a part thereof with the intent to defraud his creditors; or Ninth. Fraudulently contracted the debt or incurred the obligation for which suit is about to be brought." * *

Here are nine distinct grounds or causes, upon either of which an order of attachment may issue. Some of them embrace but one allegation, while others, and most of them, are compound in their character; but whether single or compound, each one contains but a single cause of action, and it cannot be urged as an objection to an affidavit or pleading under this section that it contains disjunctive language, as long as it contains but one of said grounds or causes of action, and substantially follows the language of the statute. The eighth subdivision or group of grounds or causes of action contains five allegations, separated by the disjunctive conjunction or, but in the meaning of the statute it embraces but one ground or cause for attachment. No doubt if the affidavit contained two of the statutory groupings of grounds or causes separated by a disjunctive conjunction, the objection, reasoning, and authorities of counsel for plaintiff in error would be applicable and unanswerable, but such is not the case.

Counsel also object to the affidavit for attachment, because the affiant does not state that he is one of the plaintiffs therein in direct language, but only by way of recital. The statute requires the affidavit to be made by the "plaintiff, his agent, or attorney." Of course where there is more than one plaintiff it can be made by either one of them, and simultaneously with the filing of the affidavit was also filed the petition in the case, whereby it appears that John A. Johnson was one of the plaintiffs. But it is sufficient for the purposes of this case to say that this objection was never brought to the attention of the district court. Had it been the petition as well as the balance of the record being before the court, it would, doubtless, have been overruled.

The second point is not relied upon in the brief, and will not be considered.

The third objection to the affidavit for attachment is, that it states plaintiffs "ought to recover the sum of $ 1,963.19 now due and payable," while the petition shows that there was only $ 1,637.88 due at the time of the commencement of the action. This constitutes no objection to the proceedings, but if the plaintiffs in the court below knowingly and willfully attached a greater amount of goods than was necessary to pay their debt then due, with costs and expenses, they would probably be liable in damages.

The fourth objection is, that the plaintiff's claim is not stated in the order of attachment as it is in the affidavit. The contention of counsel is, that the ...