Nelson v. Gibbs

By the Court.

Upon plaintiff’s affidavit stating as grounds of attachment “ that the defendants and each of them are about to assign and dispose of their property with intent to delay and defraud their creditors, and in particular to delay and defraud this deponent,” a writ of attachment was issued out of the district court for Olmsted county, and levied upon defendants’ property. Defendants upon their, joint affidavit denying the existence of the alleged grounds of attachment moved to vacate the writ, and proceedings thereunder, and from an order granting their motion plaintiff appeals to this court. It is agreed that the writ and proceedings, were vacated solely for the reason that the plaintiff’s affidavit was disproved in respect to the alleged grounds of attachment, by the affidavit of defendants. Plaintiff contends here, that it was not competent for the court below thus to inquire into the truth or falsity of his affidavit, becaus.e the statute {ch. 66, Laws 1867) gives a plaintiff an absolute right to the writ upon condition that he make affidavit of the existence of the facts specified, and not upon the condition that such facts exist. But we are of a different opinion. Sec. 1 of ch. 66 {Laws 1867) enacts that “ the writ of attachment shall be allowed when*543ever the plaintiff * * shall make affidavit", &c., &c. Sec. 3 of the same chapter enacts that “ the defendant may at any time, before the time for answering expires, or at any time thereafter when he • has answered, and before trial, apply to the court,, on notice, to vacate the'writ of attachment. If the motion is made upon affidavits on the part of the -defendant but not otherwise, the plaintiff may oppose the samé by affidavits, in addition to those on which the writ of attachment was allowed.” It appears, then, that while the statute gives a plaintiff an absolute right to the allowance of the writ upon his making affidavit as required, it does not give him an absolute right to have the writ sustained, since it provides that the. ■’same may be vacated, upon the application of defendant. The language “ apply * * * ■ to vacate the writ” is general, and its fair construction is that defendant may apply to have the writ vacated, either because the statute has not been complied with in-the allowance and issuance of the writ, or because the statements found in.plaintiff’s affidavit of the matters prescribed by statute as grounds for the allowance of the writ are untrue.

This construction is supported by the provision that defendant may base his motion to vacate upon affidavits, since it is not apparent to what these could be directed, unless it be to the disproof of the statements contained in plaintiff’s affidavit. So also the provision that plaintiff may “ oppose” defendant’s affidavits “ by affidavits in addition to those on which the writ of attachment was allowed,” would appear to imply that the defendant’s affidavits may take issue with the affidavit upon which the writ was allowed. That our construction is the proper one, appears to have been taken for granted in Blandy vs. Raguet, 14 Minn. 243.

In our opinion, then, it was competent for the court below, upon the motion to vacate, to inquire into the truth, or falsity *544of the statements of the grounds of attachment contained in plaintiff’s- affidavit. As it is not claimed, and as we see no reason to suppose, that the court (admitting its authority to make this inquiry) erred in its decision upon the comparative weight of the affidavits used upon the hearing, the order appealed from is affirmed.