Kountze v. Scott

Ragan, C.. This is a proceeding in error to review a judgment of the district court of Gage county dissolving an order of attachment issued at the instance of plaintiffs in the case of Herman Kountze and others against George R. Scott and others, brought in said district court. On the former hearing of this case the judgment of the district court was reversed. (See Kountze v. Scott, 49 Neb., 258.) Subsequently a rehearing was granted and the case has been again argued and submitted. 1. Scott and others, while indebted to Kountze and others, transferred part of their property to a man named Bates and part to a man named Cook. Kountze and others then caused this property to be attached upon the ground that such transfer was made for the purpose of • defrauding the creditors of Scott and others. The first argument of the plaintiffs in error is that Scott, having transferred his title to the attached property, has mo standing in court to be heard to dissolve the attachment. This precise question was presented to. this court in McCord v. Bowen, 51 Neb., 247., and it was. there held: “Un [462] der section 235 of the Code of Civil Procedure, a defendant may, at any time before judgment, upon reasonable notice to plaintiff, move to dissolve an attachment, and the fact that the attached property does not belong to the defendant, or is encumbered for its' full value, does not bar or estop him from filing a motion to discharge.” It' was further held in said case: “An attaching plaintiff is estopped to assert that the defendant has not sufficient interest to defend against the attachment.” To the same effect see South Park Improvement Co. v. Baker, 51 Neb., 392. These cases are decisive against the contention of the plaintiffs in error, and expressly rule that one made a defendant in an attachment proceeding may move to discharge such attachment from the whole or any part of the property attached notwithstanding the fact that he had disposed of his entire interest in such property prior to its seizure. 2. On the hearing of the motion to discharge the attachment the plaintiffs in error sought to call and examine witnesses in support of the attachment. The district court refused to permit this to be done, and this is the second assignment of error arg-ued here. Counsel for plaintiffs in error in support of their contention cite us to Tyler v. Safford, 24 Kan., 580. In that case- the district court on hearing of the motion to discharge the attachment permitted witnesses to be called and examined. Its action in this respect was assigned for error, but the supreme court overruled the exception and held that, whether the district court should have heard oral evidence on the motion to discharge the attachment was a matter discretionary with it The usual practice in this state is to use affidavits upon the hearing of a motion to discharge an attachment where the motion is not based upon the record or some defect therein. Section 236 of the Code of Civil Procedure provides that where the motion of a defendant to discharge the attachment is supported by affidavits the plaintiff in the attachment may oppose the motion by affidavits or other evidence. But [463] we do not construe this section as conferring upon an attachment plaintiff the absolute right to resist the motion to discharge by oral evidence. It was a matter for the discretion of the district court whether, on the hearing of this motion to discharge, it would hear oral evidence. 3. The third assignment of error is that the order discharging the attachment is not supported by sufficient evidence. To restate this evidence here would subserve no useful purpose. We have carefully examined it arid concur with the district court that the transfer complained of made by Scott and others was not made with a fraudulent purpose. The judgment of the district court is Affirmed.