Meinhard Bros. & Co. v. Neill

Blandford, Justice. This was an attachment sued out by the plaintiffs in error against one Blackwell. It was levied on certain property, which was claimed by Neill, the defendant in error. At the trial, the defendant in error moved to dismiss the levy because the grounds of the attachment were not sufficiently verified. It appears that the attachment was issued by the judge of the superior court, under section 3297 of the code. The affidavit to the petition was made by one Wood Abrams, to the effect that the allegations in it were true so far as they came within his knowledge, and so far as derived from the knowledge of others, he believed them to be time; but he alleged the amount of the debt positively. There 267 was another affidavit in the case, which stated that Neill, the claimant, had stated to the affiant that he had bought Blackwell’s stock of goods, and when he got the amount due him, he was to turn the balance over to Blackwell or anybody that he might direct. These were the only affidavits presented by the plaintiffs in error to sustain the attachment prayed for. The court sustained the motion to dismiss the levy, and in this we think the court was right. "We do not think' the affidavit to the petition amounted to anything except to show the amount of the debt which Blackwell owed the plaintiffs in error. The grounds of attachment in a case like this must be positively alleged and must be sustained by positive proof as to the truth thereof. Without this the trial judge would have no right to issue the attachment. This not having been done in the present case, the dismissal was proper; and the judgment is Affirmed.