Ely v. Titus

Supreme Court of Minnesota

Ely v. Titus

14 Minn. 125

CourtSupreme Court of Minnesota

DecidedJanuary 15, 1869

StatusPublished

Cited by4 cases

This text of 14 Minn. 125 (Ely v. Titus) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ely v. Titus, 14 Minn. 125 (Mich. 1869).

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Opinion

By the Court.

MoMillan, J.

In considering the sufficiency of an affidavit for an attachment made under the existing statute, we held in Murjphy vs. Bwrdy, that the departure of the. defendant from the State, with the intent .specified in the statute, constitutes a separate and distinct ground’ [126]*126of attachment, and that the words “ as deponent verily believes ” in the statute, qualifies that ground only; that the remaining grounds for an attachment are required to be stated without qualification. 13 Minn., 425.

The language of the affidavit for the attachment in the case at bar is, “ the deponent further says, that he verily believes that the said defendant Giles -A. Titus has assigned, secreted, or disposed of his property, with intent to delay and defraud his creditors. ”

TJnder the decision cited, the affidavit in this case is insufficient. There is a palpable difference between the statute under consideration, and that relating to attachments in justices’courts. The respondent urges, “that no exception having been taken to the order of the Court sustaining the attachment, no question is raised for the Supreme Court to review. • Such omission is deemed a waiver. ” This is not correct. When the order or decision constitutes part of, and appears upon the record, if appealable, it may be reviewed; but to decisions upon matters of law, made upon the trial in the progress of a cause, exceptions must be taken and properly settled, or they will not be considered in the.appellate court!

The authorities cited by the respondent, all refer to exceptions of this class. In this case, the defendant moved to dissolve and vacate the attachment, among other grounds, upon the insufficiency of the affidavit. The Court denied the motion, and sustained the attachment. This order under our statute is appealable. Gen. Stat., Ch. 86, Sec. 8, subdivision 2, p. 577.

There are other objections urged to the sufficiency of the affidavit for the attachment in this case, which we need not consider.

The order sustaining the attachment is reversed.

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By the Court.

MoMillan, J.

In considering the sufficiency of an affidavit for an attachment made under the existing statute, we held in Murjphy vs. Bwrdy, that the departure of the. defendant from the State, with the intent .specified in the statute, constitutes a separate and distinct ground’ [126]*126of attachment, and that the words “ as deponent verily believes ” in the statute, qualifies that ground only; that the remaining grounds for an attachment are required to be stated without qualification. 13 Minn., 425.

The language of the affidavit for the attachment in the case at bar is, “ the deponent further says, that he verily believes that the said defendant Giles -A. Titus has assigned, secreted, or disposed of his property, with intent to delay and defraud his creditors. ”

TJnder the decision cited, the affidavit in this case is insufficient. There is a palpable difference between the statute under consideration, and that relating to attachments in justices’courts. The respondent urges, “that no exception having been taken to the order of the Court sustaining the attachment, no question is raised for the Supreme Court to review. • Such omission is deemed a waiver. ” This is not correct. When the order or decision constitutes part of, and appears upon the record, if appealable, it may be reviewed; but to decisions upon matters of law, made upon the trial in the progress of a cause, exceptions must be taken and properly settled, or they will not be considered in the.appellate court!

The authorities cited by the respondent, all refer to exceptions of this class. In this case, the defendant moved to dissolve and vacate the attachment, among other grounds, upon the insufficiency of the affidavit. The Court denied the motion, and sustained the attachment. This order under our statute is appealable. Gen. Stat., Ch. 86, Sec. 8, subdivision 2, p. 577.

There are other objections urged to the sufficiency of the affidavit for the attachment in this case, which we need not consider.

The order sustaining the attachment is reversed.

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Bluebook (online)

14 Minn. 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ely-v-titus-minn-1869.

Opinion

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