Ask v. Armstrong

Haney, J. This is an appeal from an order discharging an attachment. On the hearing of defendant’s motion to dis 266 charge, plaintiff was allowed to file the following amended affidavit: “James W. Ask came before me personally, and being first duly sworn, says: That he is the James W. Ask who is the plaintiff in the above entitled action, which is brought for the recovery of money only, arising upon contract, and a summons has been issued therein. That a cause of action exists against said defendant and in favor of said plaintiff therein, and the amount of said plaintiff’s claim therein is (over and above all discounts and set-offs) eight hundred and thirty-one dollars, now due, and the further sum of fifteen hundred and ninety-eight and 80-100 dollars, not yet due; and the ground thereof is as follows, that is to say: Seven promissory notes for the sum of three hundred dollars each, and one note for the sum of two hundred and thirty dollars; all dated December 24th, 1894, drawing interest at the rate of eight per cent, per annum, and due, respectively, in three, six, nine, twelve, fifteen, eighteen twenty-one and twenty-four months from .their date; all signed, made and executed by the defendant, John Armstrong, and by him delivered to the plaintiff, James W. Ask, for value received. All said notes being now tlieproperty of the plaintiff James W. Aslc, who is the payee named thereon. And that the defendant obtained the property for which he gave those notes, and of which those notes represent the purchase price, under false pretenses, and the debt which those notes represent was incurred for property obtained under false pretenses. Further, that the defendant has assigned, disposed of and removed part of his property with intent to defraud his creditors, and is about to assign, dispose of and remove part or all of his property, with the intent and to the effect of defrauding his creditors, and of delaying them in the collection of their debts. And said affiant deposes and says that plaintiffis in danger of losing his said, claim by reason of the facts aforesaid, unless a warrant of attachment issue; and prays that such warrant of attachment may be allowed and issued against the property of said defendant therein, according to the statute in such case pro 267 vided; and said affiant says that no previous application has been made herein for such order. This, being an amended affidavit, is made of the date of October 28th, 1895, and refers to facts as they then existed.” ' The words printed in italics were not in the original; otherwise the affidavits were identical. To what extent, if any, an affidavit for attachment may be amended need not be discussed, as we consider the original contained a sufficient statement of plaintiff’s cause of action and the grounds thereof. The amendment being superfluous, the order permitting the amendment, if error, was error without prejudice. Gans v. Beasley (N. D.) 59 N. W. 714. Defendant objected to the introduction of any evidence tending to show that the debt upon which the attachment is based was incurred for property obtained under false pretenses for the reason that such fact does not constitute a ground for attachment. The objection was sustained. In this the court erred. Finch v. Armstrong (S. D.) 68 N. W. 740. The order appealed from is reversed.