McAllister v. Davey

5 Ohio N.P. 274

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: January 31, 1898
• Status: Published

Opinion

SPIEGEL, J.

This case comes on for hearing on a motion to discharge the attachment granted against the property of the defendant by the justice below. Plaintiff obtained the attachment upon a sworn affidavit (1st), that the debt was fraudulently contracted, and (2d), that defendant was about to remove her property out of the county for the purpose of defrauding her creditors.

Each party to this suit has filed two affidavits for and against the motion, one affirming and the other denying.

The first ground for the attachment, although sworn to originally by plaintiff’s agent, has been entirely abandoned by her, and only the second ground, removal of property for the purpose of fraud, remains. But the mere fact of a removal of property, without intent to defraud creditors, does not give the right of attachment. The intent is essential, and when denied the burden is thrown upon the plaintiff to prove it. The affidavits do not show a preponderance nf the evidence in her favor, and the motion to dismiss must be granted.