Williams v. Farmers' Gin & Grain Co.

• Decision Date: 25 June 1903
• Citation: 73 P. 269,13 Okla. 5,1903 OK 52
• Parties: WILLIAMS v. FARMERS' GIN & GRAIN CO.
• Court: Oklahoma Supreme Court

73 P. 269

13 Okla. 5, 1903 OK 52

WILLIAMS v. FARMERS' GIN & GRAIN CO.

Supreme Court of Oklahoma

June 25, 1903

Syllabus by the Court.

1. When an attachment is procured by the filing of the usual affidavit, and a motion is filed to dissolve the same controverting the truthfulness of the grounds laid in the affidavit, which motion to dissolve is supported by the affidavit of the defendant or defendants, an issue is thus joined on the question of attachment, and the burden of proof, under such issue, is on the plaintiff to support the ground laid in his affidavit by the preponderance or greater weight of evidence.

2. When an attachment is procured on the grounds that the defendant is a nonresident of Oklahoma, and a motion to dissolve supported by affidavit, is filed, the question presented is purely one of fact, depending for its determination on the evidence introduced on the motion to dissolve the attachment and is not a question of law in any sense.

Error from District Court, Cleveland County; before Justice C. F Irwin.

Action by S. L. Williams against the Farmers' Gin & Grain Company, composed of F. P. Mosely and S. M. Williams. From a judgment dissolving the attachment, plaintiff brings error. Affirmed.

J. W. Hocker, for plaintiff in error.

C. L. Botsford and J. F. Sharp, for defendant in error.

GILLETTE J.

The sole question in this case is as to whether or not error was committed by the trial court in dissolving the attachment which was procured by the plaintiff at the beginning of the case. The action ran against F. P. Mosely and S. M. Williams and plaintiff alleged that they were partners doing business under the firm name and style of the Farmers' Gin & Grain Company. The attachment affidavit alleges that the defendants are nonresidents of the territory of Oklahoma. The motion to dissolve the attachment controverted the truthfulness of this attachment affidavit, and alleged that the defendant S. M. Williams never was a member of said copartnership, the Farmers' Gin & Grain Company. The affidavit in support of this motion to dissolve, in addition to stating that the defendant S. M. Williams was not a member of said copartnership, alleged that the members of the said firm were the defendant F. P. Mosely and A. R. Williams, wife of the defendant S. M. Williams. It appears from the evidence introduced that the defendant F. P. Mosely, at the time the action was begun and the attachment sworn out, was living in the town of Purcell, in the Indian Territory; but it was claimed by him that he was only there for the temporary purpose of sending his children to school, and having them under the care of his niece, a teacher in the Purcell...