Porter v. Boehme

199 N.W. 895, 160 Minn. 127, 1924 Minn. LEXIS 707

• Court: Supreme Court of Minnesota
• Decided: June 27, 1924
• Docket: No. 24,008
• Status: Published

Opinion

Per Curiam.

This is an appeal from an order discharging a writ of attachment because of the insufficiency of the affidavit for attachment. In the effort to state the statutory ground this language is used:

“Affiant further states and so verily believes that the defendant is about to depart from the state to avoid service of the summons herein and to defraud and delay his creditor, the plaintiff; that the defendant has or is about to disipóse of his property with intent to defraud his creditor, the plaintiff herein.”

It is urged that the first clause, in this language, down to and including “the plaintiff;” is sufficient to comply with subdivision 3 of section 7816, Gr. S. 1913. There is no merit in this contention. The statutory provision referred to does not authorize the issuance of the writ upon a showing in the affidavit that the debtor is “about” to depart from the state, as stated in this affidavit, but it must state as a fact that “he has departed from the state,” etc.

The balance of the affidavit, now before us, as above quoted, states two distinct grounds for attachment in the alternative .and is bad for that reason. American Nat. Bank v. Klist, 155 Minn. 68, 192 N. W. 190. It had to fall.

Order affirmed.