Watson v. Loewenberg

Mr. Justice Bean, after making the foregoing statement of the facts, delivered the opinion of the court. 1. It appears from this statement of the case that the defendant sought to have the attachment discharged by a traverse of the facts alleged in plaintiff’s affidavit. [335] In such case the rule is well settled that, whatever the method of procedure may be, the traversing affidavit or plea must deny every statutory ground alleged in the procuring affidavit in as direct and explicit terms as if it were an answer to a complaint, and must be tested by the same rules of pleading. “The denial of the grounds of attachment, as alleged in the affidavit,” says Mr. Wade, “should be positive, clear, and explicit. Whatever be the technical mode of procedure, whether by plea in abatement, as at common law, or by a statutory pleading in the nature of a plea in abatement, as in the State of Missouri, the paper filed in the case must possess the essential features of good pleading under the Code. Where the mode was by plea in abatement, it was held that the plea would be held bad on demurrer where two distinct grounds were alleged. In this the rule of pleading at common law is followed, as such pleas are held demurrable for duplicity when two distinct matters, each of which is sufficient, are pleaded at the same time, either in abatement or in bar. But the plea in abatement in attachment suits is open to a more serious objection, where it fails to deny distinctly the allegations of the affidavit. As we have seen, a denial of some of the allegations in the allegation practically leaves those undenied for the purpose of the traverse, as though they were confessed. It will, therefore, be fatal to the plea where one of the grounds is not traversed, or even where what may be regarded as one of two phases of the same fact is passed over, without denial, though the other phase is put in issue:” 1 Wade, Attach. § 279. See, also, 3 Enc. Pl. & Prac. 78; Hornick Drug Co. v. Lane, 1 S. D. 129 (45 N. W. 329); Hansen v. Doherty, 1 Wash. St. 461 (25 Pac. 297); Keith v. Stetter, 25 Kan. 100; McFarland v. Claypool, 128 Ill. 397 (21 N. E. 587); Bane v. Keyes, 115 Mich. 244 (73 N. W. 230). Now, [336] tested by these rules, it seems clear that the traversing affidavits of the defendant are insufficient. He does not, at any time, deny the allegations of the affidavit for the writ, or allege that the indebtedness sued upon is secured. He bases his motion entirely upon the ground that the plaintiff’s assignor claims that it had the right to hold certain property in its possession as collateral security for such indebtedness; ■ and, while he does not admit the validity of such claim, his contention is that, if it is true, the attachment should be discharged. This, we think, is not a sufficient showing to justify the court in allowing the motion. 2. The statute authorizes a writ of attachment in an action on contract for the direct payment of money, and which is not secured by mortgage, lien, or pledge upon real or personal property, or, if so secured, when such security has been rendered nugatory by the act of the defendant: Hill’s Ann. Laws, § 144. By this statute the creditor holding such a security is denied the right to' the summary process of attachment; but it must be an admitted security, and not one the validity of which is denied by the defendant, and which can only be enforced, if at all, at the end of a lawsuit: Porter v. Brooks, 35 Cal. 199. 3. If the defendant in this case had admitted the claim of the bank, his motion would probably have been well taken, but this he did not do. In the first affidavit filed by him he simply shows that the bank has possession of certain property, which it claims to hold as security for the indebtedness sued on, but does not admit the validity of such claim. In the second affidavit he expressly swears that the stock never was pledged to the bank, and that it never had any lien or claim thereon whatever. It was not until after the suit brought by the bank against him had been tried out, and the find [337] ings of the referee made to the effect that the bank’s contention was in part true, that he ever conceded, even in a qualified way, that his indebtedness to the bank was secured; and his statement then was that, if the testimony of the witnesses in behalf of the bank, or the findings of the referee in the equity suit are true, and that the bank did in fact have the right to hold such stock as collateral security, then, and in that event, the indebtedness sued upon was secured, and the attachment ought to be discharged ; although he does not admit the claim or contention of the bank. Under these circumstances, we think the showing made by him was insufficient to authorize the discharge of the attachment, and that the court erred in sustaining such motion. The judgment of the court below is therefore reversed, and the cause remanded, with directions to overrule the motion to discharge the attachment, and for such further proceedings as may be proper in the matter. Keversed.