Morrison v. Lovejoy

By the Court — Elandrau, J. — Section 142, page 550 of the Compiled Statutes, so far as it authorizes the clerks of the District Courts to allow warrants of attachment, is in conflict with Section 1 of Article 6 of the State Constitution. The allowance of the warrant is a judicial act; it involves the examination of proofs and a decision thereon, and is final until set aside by the Court. It is not done subject to the approval of the Court, and requires no confirmation to perfect it. It is sufficient to state in the affidavit that a cause of action exists against the Defendants, the amount of the claim and the grounds thereof. All that is necessary in this respect is, that the action is for the “recovery of money.” Davidson vs. Owen et al., 5 Minn. P. 69; Comp Stat., p 550, secs. 142, 144. The affidavit, so far as the Defendant Morrison was concerned, was entirely insufficient. The only fact or circumstance contained in it as against him is as follows : “That the said Dorilus Morrison for the purpose and intention of hindering, delaying and defrauding his creditors, as deponent is informed and believes, sometime during the year 1858 or 1859, conveyed by warrantee deed a large number of lots of land in the village of Minneapolis, in said county; that deponent is informed and believes that said lots were all the real estate owned by said Defendant Morrison, and that the said, conveyance was made to one W. D. Washburn a brother of the Defendants Washburn.” The motive of the [186] conveyance is stated merely upon the information and belief of the deponent, and no fact or circumstance is alleged from which such improper motive could be inferred. It is not made to appear that the cause of action upon which the suit is brought .had accrued at the time the lots were conveyed, or that Morrison had a single creditor at the time. "We have frequently held that proof of this character will not authorize the allowance of an attachment. Pierse vs. Smith, 1 Minn. R., 82; Id., 222-3; Curtis vs. Moore, 3 M. R., 29. The order refusing to quash the attachment is reversed, and the warrant quashed.