Hale v. . Richardson

MerrimoN, J., after stating the case. The allegations in the ■affidavit that the defendant was about to leave the state with a view to defraud his creditors, was immaterial in the application for the warrant of attachment: such removal is not made a cause for such warrant, but it would be a material allegation in an affidavit for a warrant of arrest. The Code, §§291,349; Wilson v. Barnhill, 64 N. C., 121. It is competent on a motion to discharge an attachment, for the court to hear affidavits and any proper evidence to disprove the allegations contained in the affidavit required by the statute to support a motion for the warrant. The plaintiff may in such case meet them by counter-affidavits and evidence. There is nothing in the statute that makes the affidavit necessary to obtain the warrant of attachment, conclusive of the truth of the alie- *64 gations therein made, and it would be manifestly unjust to make it so by judicial precedent. If this were so, an overzealous or unprincipled creditor might make a remedial statute an engine of oppression and wrong. There are many cases in which counter-affidavits have been heard under varying circumstances. We. think it is generally competent to disprove the alleged grounds for a warrant of arrest, warrant of attachment and like cases by affidavits and proper evidence upon a motion that puts the same in issue. Clark v. Clark, 64 N. C., 150; Bruff v. Stern, 81 N. C., 183; Devries v. Summit, 86 N. C., 126; Benedict v. Hall, 76 N. C., 113. The findings of the court upon the evidence, that the defendant- did not sell his property fraudulently and with a view to defraud his creditors, is conclusive, and this court has no power to review his findings in this respect. This is well settled by many decisions. Burke v. Turner, 85 N. C., 500. The court having found the single material allegation in the affidavit upon which the warrant of attachment was granted to be unfounded, it was proper to discharge the attachment and give judgment that the property levied upon and seized be restored to the defendant, in the absence of any motion to amend that the court would for satisfactory reasons grant. There is no error and the judgment must be affirmed, and it is so ordered. Let this be certified. No error. Affirmed.