Lindquist v. Johnson

Corson, J. This is an appeal from an order discharging an attachment. The affidavit upon which the warrant of attachment was issued states, as the grounds of the attachment, “that defendants have assigned, disposed of, and secreted a portion of their property, with intent to defraud their creditors; and that said defendants are about to dispose of, assign, and secrete the balance of their property, with intent to defraud their creditors; and also that said debt was incurred for property obtained under false pretenses.” A motion was made on the part of the defendants to vacate, set aside, and discharge the attachment upon the following grounds: “(1) That the affidavit of attachment upon which said attachment was issued 487 does not state facts sufficient to authorize the issuing thereof; (2) that the allegations of said affidavit for attachment * * * were and are false and untrue, and no grounds for said attachment at any time existed or now exist.” Affidavits in support of the motion, and also rebutting affidavits, were read on the hearing, and the court made an order vacating, setting aside, and discharging the warrant of attachment, for the reason that “no sufficient grounds exist for said attachment.” From this order the plaintiff has appealed to this court. It will be noticed that the affidavit upon which the warrant of attachment was issued states several grounds for issuing the same among which is “that said debt was incurred for property obtained under false pretenses.” The defendants, in their affidavits in support ol' their motion to discharge the attachment, nowhere deny the existence of the last ground for the attachment. Tiny deny, or attempt to deny, the existence of the other grounds stated for the attachment, and their affidavits are quite full in the statement of facts in support of such denial. The last ground for the attachment stated m the affidavit is one of the statutory grounds for the same, as appears by Subdivision 3, § 4995, Comp. Laws. The failure of the defendants to deny this ground for attachment leaves one sufficient ground for the attachment undenied. If the affidavit had shown this fact alone, it would have been sufficient ground for the attachment, and, if the defendants had sought a discharge of the warrant by the court, they must have positively and definitely denied such allegation. It was incumbent, therefore, on the defendants, on their motion to discharge the attachment, to meet each substantive ground alleged, upon which the warrant had been issued, with a full and unqualified 488 denial. There was an effort, at least, to traverse all the other statutory grounds for attachment alleged in the affidavit, and the practical effect of denying a part of the allegations only is to leave those undenied as though confessed. The affidavit upon which the warrant was issued seems to be proper in form, and fully specified the amount the plaintiff claimed, and the grounds therefor. It was error, therefore, in the circuit court to sustain the motion. Drug Co. v. Lane, 1 S. D. 129, 45 N. W. 329; Jones v. Meyer. 7 S. D. 152, 63 N. W. 773; Keith v. Stetter, 25 Kan. 10; Tucker v. Frederick. 28 Mo. 574; Dumay v. Sanchez, 71 Md. 508, 18 Atl. 890; 1 Shinn, Attachm. § 353; Drake, Attachm. § 101. The order of the circuit court is reversed.