Hornick Drug Co. v. Lane

45 N.W. 329, 1 S.D. 129, 1890 S.D. LEXIS 17

• Court: South Dakota Supreme Court
• Decided: May 12, 1890
• Status: Published

Opinion

Kellam, J.

This case comes to this court on appeal from an order of the district court discharging an attachment therein. The warrant was issued upon an affidavit charging that the defendant had “assigned, disposed of, and secreted his property, and was about to assign, dispose of, and secrete his property, with intent to defraud his creditors.” The principal ground relied upon to justify the issuing of the warrant was the giving of a certain chattel mortgage on a portion of his stock, by defendant and respondent, to his brother, William A. Lane, which mortgage appellants claim as to them, creditors of said respondent, was at least presumptively fraudulent on its face. This question was fully considered and determined in Lane v. Starr, ante. 212, (decided at this term,) w-iere it was held tbai there was nothing in the mortgage itself to impeach its validity; and. the attachment must be sustained if at all, upon grounds other than any appearing upon the face of the mortgage. Under our statute, (Section 4995,Comp. Laws,) one of the specific grounds justifying the issuing of an attachment is that the defendant has secreted, or is about to secrete, his property with, intent to defraud his creditors, and this was one of the facts in the attachment affidavit alleged to exist, and one of the grounds upon which the warrant of attachment was issued. If the affidavit had shown this fact alone, it would have been sufficient ground for the attachment, and, if the defendant had sought a discharge of the warrant by the court, he must have positively and definitely denied such allegation. In the procuring affidavit in this case it was charged that the defendant “had assigned, disposed of, and secreted his property, and was about to assign, dispose of, and secrete his property, with intent to defraud his creditors,” and it was incumbent on him, on his motion to discharge, to meet each substantive ground alleged, and upon which the warrant had been issued, with a full and unqualified denial. We have examined with great care all the affidavits which were used in the court below on the motion to discharge, and can find no denial, nor any attempt at a denial, of this charge of secretion. There was an effort, at least, to traverse all the other statutory grounds for attachment, as alleged in the affidavit. The practical effect of denying a part of the allegations only, is to leave those undenied as though confessed. With this specific and positive allegation of the attachment affidavit uncontradicted, or even explained, it being alone sufficient to support the attachment, it was error in the court below to sustain the motion to discharge. The order of the district court discharging the warrant of attachment is reversed.

All the judges concurring.