Brumgard v. Anderson

Morphy, J., delivered the opinion of the court. The plaintiff is appellant from a judgment dissolving and setting aside an attachment, sued out against the property of defendant, independent of an order of arrest against his person. This case has been submitted to the court without argument. Of the several grounds taken by the defendant, the court below has rested the decision complained of mainly on- the first, which presented a question of fact; to wit, “ that the allegations, on which the order for said attachment was obtained, are false-; that the defendant, at the time of said attachment or before, or since, had no intention of leaving the state permanently or forever; that the plaintiff had no just ground upon which tb base his affidavit and prayer for said attachment; but that this proceeding was resorted to with the intention of vexing and harassing this defendant.” The record presents a mass of testimony in relation to divers circumstances, tending to negative the idea that the defendant had any intention of leaving the state. After an attentive examination of the whole evidence before us, we concur in opinion with the judge below, that the facts set forth in the plaintiff’s affidavit have been disproved, or at least that there has been on the part of defendant, a sufficient showing [343] in opposition to the affidavit, to throw on the plaintiff the burden of proving its verily. This he has attempted to do, by two witnesses; the rejection of whom by the court, on the score of interest, has been the occasion of two bills of exceptions which are to be found in the record. It appears that botli witnesses, when examined on their voir dire, declared that they were, and believed themselves to be interested in the suit. This surely rendered them incompetent to testify, But the plaintiff offered to prove that one of the two witnesses rejected, John M. Perry, was not interested. We think that the judge did not err in refusing to admit this testimony. John M. Perry disclosed the grounds of his belief: He slates that a part of the property attached was sold by him to his son, L. P. Perry, (one of defendant’s vendors) for the purpose of securing the payment of certain debts, for which he (witness) was and still is responsible; and that his son has assumed the payment of those debts. That, as the agent of his son, he has taken an attachment against the same property in the hands of the defendant; and that the writ 1ms issued upon his own affidavit, as agent of his son. These facts, independent of the witnesses’ belief, would have sufficed, pet haps, to exclude his testimony; but when coupled with (he declaration made by the witness, that be_ believed himself interested, they fully justify (he decision of the judge a quo. Under (his view of (he case, we have not found it necessary to inquire into the alleged irregularities which form the other grounds urged below, by the defendant, to set aside the attachment. nessef, .declare &re that they themselves6'uiterefe<! in the they are incomPetent t0 testlt'yIt is, therefore, ordered, that the judgment appealed from be affirmed, with costs.