Whipple v. Hill

• Decision Date: 26 April 1893
• Citation: 55 N.W. 227,36 Neb. 720
• Parties: WHIPPLE v. HILL.
• Court: Nebraska Supreme Court

36 Neb. 720

55 N.W. 227

WHIPPLE

v.HILL.

Supreme Court of Nebraska.

April 26, 1893.

Syllabus by the Court.

1. The affidavit upon which the attachment in this case was issued examined, and held sufficient.

2. Where a motion to discharge an attachment, on the ground that the facts stated in the affidavit are untrue, is heard upon conflicting affidavits, the decision of the trial court on the motion will not be disturbed unless it is clearly against the weight of the evidence.

3. Section 38, c. 19, Comp. St., providing that “no court can be opened nor any judicial business be transacted on Sunday, or any legal holiday,” etc., does not prohibit a county judge from issuing, on a legal holiday, an order of attachment on a debt past due, since that is purely a ministerial, and not a judicial, act.

Error to district court, Greeley county; Coffin, Judge.

Action in attachment by Pauline A. Hill against John F. Whipple. Plaintiff had judgment, and defendant brings error. Affirmed.Henry Nunn, for plaintiff in error.

T. J. Doyle, for defendant in error.

NORVAL, J.

The defendant in error commenced an action by attachment, in the county court of Greeley county, against plaintiff in error, to recover the sum of $205.95 on a promissory note. The affidavit for the attachment was filed and the writ issued on the 1st day of September, 1890. Service was had on the following day. Subsequently defendant filed a motion in the county court to discharge the attachment upon the following grounds: “(1) Because the allegations in plaintiff's affidavit are insufficient to sustain the attachment. (2) Because the allegations in said affidavit are untrue. (3) Because the writ of attachment was issued and served on the 1st day of September, 1890, which was a legal holiday.” This motion was overruled by the county court, and the attachment sustained. Thereupon the defendant prosecuted error to the district court to reverse said ruling, which resulted in affirming the decision of the county court. The objections urged by the plaintiff in error, in his motion for a dissolution of the attachment, will be noticed in the order in which they are stated therein.

The first point made is that the allegations in the attachment affidavit are insufficient to sustain the attachment. The following is a copy of the affidavit upon which the attachment was granted, omitting caption and title of the cause: “State of Nebraska, Greeley county--ss.: Henry A. Hill, being duly sworn, says he is the duly-authorized agent of plaintiff. The said plaintiff makes oath that the claim in this action is for two hundred and five and 95-100 dollars, due under contract on promissory notes; and the said Henry A. Hill also makes oath that said claim is just, and that Paulina A. Hill, plaintiff, ought, as he believes, to recover thereon two hundred and five and 95-100 dollars. He also makes oath that said defendant, John F. Whipple, is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors, and is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; that the said John F. Whipple has property and rights in action which he conceals, and has assigned, removed, and disposed of, and is about to dispose of his property, or a part thereof, with the intent to defraud his creditors; and fraudulently contracted the debt for which suit is brought. H. A. Hill. Subscribed in my presence, and sworn to before me, this 1st day of September, A. D. 1890. H. H. Parks, Co. Judge.” It is contended that the affidavit is insufficient, because the allegation therein as to plaintiff's claim is not sworn to either by the plaintiff or her agent. The objection is not good. True, the affidavit states, “The said plaintiff makes oath that the claim in this action is for two hundred and five and 95-100 dollars, due under a contract on promissory notes.” But immediately following said averment, the affidavit contains this language: “And the said Henry A. Hill also makes oath that said claim is just, and that Paulina A. Hill, plaintiff, ought, as he believes, to recover thereon two hundred and five and 95-100 dollars;” from which it sufficiently appears that the affiant, H. A. Hill, makes oath to the statement in the affidavit relating to the nature of the plaintiff's claim. A printed form was used in preparing the affidavit, and manifestly it was an oversight on the part of the draughtsman in not erasing the printed word “plaintiff,” and inserting the word “affiant.” But the affidavit is not for that reason defective. We think it sufficient to support the attachment. In Jansen v. Mundt, 20 Neb. 320, 30 N. W. Rep. 53, an affidavit for an attachment was made by plaintiff's attorney, wherein he swears “that he is the authorized attorney of the plaintiff in the above-entitled action; that he has commenced an action,” etc. It was ruled that the defect in omitting to state that plaintiff commenced the action did not render the affidavit void, inasmuch as it appeared from the whole affidavit that the suit was brought by the plaintiff. In principle,the case at bar is not distinguishable from the case cited.

The second objection is that the facts stated in the affidavit for the attachment are untrue. The defendant filed an affidavit denying the grounds of the attachment, and, on the hearing of the motion to dissolve, numerous affidavits were filed in support of, and in resistance of, said motion. From an examination of the several affidavits it appears that there is a sharp conflict of evidence, but we are convinced that a preponderance thereof supports the original affidavit for the attachment. The rule long adhered to in this court is that where a motion to discharge an attachment, on the ground that the allegations in the affidavit are not true, is decided upon conflicting testimony, this court will not disturb the ruling unless the...