Wearne v. France

• Citation: 21 P. 703,3 Wyo. 273
• Parties: WEARNE v. FRANCE
• Decision Date: 01 February 1889
• Court: Wyoming Supreme Court

21 P. 703

3 Wyo. 273

WEARNE v. FRANCE

Supreme Court of Wyoming

February 1, 1889

Error to district court.

Action by one Wearne against one France, executor of James France deceased. A motion to dissolve attachments issued on plaintiff's affidavits was sustained, and plaintiff brings error. Affirmed.

Order affirmed.

J. R Dixon, for plaintiff in error.

Brown Blake & Arnold and Corlett, Lacey & Riner, for defendant in error.

MAGINNIS C. J.

OPINION

MAGINNIS, C. J.

Plaintiff in error sued James France, testator of defendant in error, in the court below, upon two certificates of deposit issued by France as a banker. One of these certificates was due and unpaid at the time suit was brought; the other was not due at that time. No right of action was shown upon the face of the petition upon this second certificate. Under the statutes of this territory, action upon a debt not due may only be brought when one of the following causes exists: First, when a debtor has sold, conveyed, or otherwise disposed of his property, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts; second, when he is about to make such sale or disposition; third, is about to remove his property with such intent, or where he is about to become a non-resident of the territory. Clearly, the petition in such case must allege the existence of one of these facts, in order to state a cause of action. The second cause of action in the amended petition in this case fails to make any such allegation, and is therefore fatally defective, and such defect cannot be cured by intendment. Plaintiff in error filed two affidavits, --one upon each of these causes of action, --for attachment. Each affidavit alleged that the defendant had assigned his property with intent to defraud his creditors. Upon the one filed in connection with the first cause of action a writ of attachment issued as of course; upon the other an application was made to the judge in conformity with the statute, and an order was made by him granting the writ. Defendant filed a motion to discharge and dissolve "the attachment" for the reason, among others, that the allegation that he had assigned his property with such fraudulent intent, as charged, was false. This motion was supported by affidavits, and was heard by the court upon oral testimony. The court sustained the motion, and dissolved "the attachments."

The action of the court in dissolving the attachments when the motion made by defendant was in the singular number is now assigned as error. It appears from the record sent up that all parties treated the motion to discharge as being addressed to the two writs, and upon this theory offered evidence. It does not appear that the attention of the court below was called to the form of the motion in any way. The objection, if it has any force at all, is purely technical, and we are inclined to think would in any event not be sufficient ground for reversal. Plaintiff in error probably would not be permitted to make such a question in this court for the first time. The two affidavits for attachment were obviously based upon the same state of facts, and, those facts not being sufficient, as will be seen hereafter, to support an attachment, the opinion of this court would necessarily dispose of the other writ. There is therefore no substance in the assignment of error; and, indeed, under the circumstances of the case, the absolute lack of jurisdiction in the court below to try the second cause of action is apparent upon the face of the papers. We see no error in the order dissolving both writs.

An objection is made by plaintiff in error that the motion to discharge, as supported by affidavits, does not present a triable issue, but that such issue must be made by plea. This objection is not well taken, for the reason that the statute (sections 2910 and 2911, Rev. St. Wyo.) expressly provides that the validity of the attachment shall be tried upon motion to discharge, supported by affidavits or oral evidence. Upon the hearing of the motion in the court below plaintiff demanded a jury, which demand was refused by the court, and the refusal is now assigned as error. The right to trial by jury, guarantied by article 7 of the constitution of the United States, extends only to "suits...