Tolerton & Stetson Co. v. Casperson

• Decision Date: 22 June 1895
• Citation: 7 S.D. 206,63 N.W. 908
• Parties: TOLERTON & STETSON COMPANY, Plaintiff and appellant, v. CASPERSON, Defendant and respondent.
• Court: South Dakota Supreme Court

7 S.D. 206

63 N.W. 908

TOLERTON & STETSON COMPANY, Plaintiff and appellant,

v.

CASPERSON, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Kingsbury County, SD Hon. J. O. Andrews, Judge Reversed Sehenian & Savage Attorneys for appellant. Whiling & Cooley Attorneys for respondent. Opinion filed June 22, 1895

CORSON, P. J.

This is an appeal from an order discharging an attachment. There are two preliminary motions—one on the part of the appellant, and one on the part of the respondent—necessary to be determined.

The motion of the appellant is to strike out the respondent’s additional abstract, for the reason that such abstract “is not a further or additional abstract, showing matters necessary to a full understanding of the questions presented, but is simply a printed motion, under the guise of an abstract, to strike out certain parts of appellant’s abstract.” In the appellant’s abstract appear copies of a trust deed and an inventory, which the respondent, in his additional abstract, denies were introduced in evidence, or considered by the court on the motion to discharge the attachment. This is a matter which can be determined from an examination of the original records in this court. When a respondent desires to correct the appellant’s abstract by striking out matters that are not contained in the original record, an additional abstract is proper. Bringing this matter to the attention of this court, therefore; by an additional abstract, is the proper practice, and the motion to strike out the same is denied.

Respondent moves the court to dismiss the appeal upon two grounds: First, because the undertaking on appeal was not served upon the clerk of the court; second, because the affidavits of the sureties are insufficient to render the undertaking on appeal available as an undertaking.

It is not necessary to serve the undertaking on an appeal on the clerk, It is sufficient to file the same with the clerk, with the notice of appeal. Comp. Laws, section 5231. By section 5215, the notice of appeal is required to be served upon the clerk, as well as upon the adverse party, but the undertaking on appeal is not, by that section, required to be served upon the clerk. The service referred to in section 5231 is the service upon the party only.

In support of the second ground the respondent brings to the attention of this court, by his additional abstract, the justification to the undertaking on appeal, from which it appears that the same is defective, in that it omits the clause required by section 5232 to be contained in the undertaking, namely, “in property within this state not by law exempt from execution.” This section of the statute is mandatory, and provides: “An undertaking upon an appeal shall be of no effect unless it be accompanied by the affidavit of the sureties, in which each party shall state that he is worth a certain sum mentioned in such affidavit, over and above all his debts and liabilities, in property within this territory not by law exempt from execution, and which sum so sworn to by such sureties shall, in the aggregate, be double the amount specified in said undertaking.” The undertaking is clearly insufficient, and must be disregarded. But the appellant asked leave, under the provisions of section 5235, to file a new undertaking, and submitted to the court an undertaking executed in due form, at the time appellant’s motion was presented. Section 5235 provides as follows: “When a party shall in good faith give notice of appeal, and shall omit, through mistake or accident, to do any other act necessary to perfect the appeal or make it effectual, or to stay proceedings, the court from which the appeal is taken, or the presiding judge thereof, or the supreme court, or any one of the justices thereof, may permit an amendment, or the proper act to be done on such terms as may be just.” The defect in the justification in this appeal was evidently made through a mistake or accident, and hence, under the liberal provisions of that section, we are of the, opinion that the appellant should be permitted to file a pew undertaking as a substitute for the defective one now on file in this case. The above section was taken from the statutes of Wisconsin, and in Helden v. Helden, 9 Wis. 508, and Falk v. Goldberg, 45 Wis. 94, the section seems to have received a very liberal construction, and we think properly so. The motion to dismiss the appeal is denied, but without costs, and appellant’s motion to substitute a new undertaking is granted.

This brings us to the merits. It is contended by the respondent that as the defendant and apppellant made an assignment of all his property for the benefit of his creditors subsequently to said attachment, but before the motion to discharge the same was made, he had no such interest in the property attached as would enable him to make this motion to discharge, as by the assignment his interest in the property terminated. That question was before this court in Bank v. Carroll,(1890), and it held that “an insolvent debtor, who has made a general assignment for the benefit of creditors, has such a reversionary in terest in the assigned estate that he may move to vacate an attachment upon a direct traverse of the procuring affidavits.” That decision rules this case, and disposes of the question presented.

Appellant further contends that the defendant and respondent is estopped from questioning the attachment proceedings for the reason that he advised the attachment proceedings, and that it was because of the respondent’s advise and statement that the appellant took out the attachment. We are of the opinion that the appellant is right in its contention. It is quite clear from the affidavit of appellant’s attorney, Mr. Merrick, who acted for the plaintiff and appellant in taking out the attachment, that he was encouraged, if not directly requested, by the respondent to take out the same. Mr. Merrick first sought to get security by way of a second chattel mortgage, and as to this he, in his affidavit, says:

“Deponent further says that at that time the said defendant told this deponent that he would not sign the said chattel mortgage for the reason that if he did he could not claim his exemptions, and if this deponent would attach he could then claim his exemptions, Said defe...