Hornick Drug Co. v. Lane
Hornick Drug Co. v. Lane
Opinion of the Court
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
Reference
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- Syllabus
- 1. A motion to discharge a warrant of attachment should be refused unless the defendant, or other moving party, denies the existence of every statutory ground alleg-ed in the affidavit upon which the warrant was issued. 2. Where the warrant is issued upon an affidavit alleging, among other statutory grounds, that the defendant has secreted and is about to secrete his property with intent to defraud his creditors, and the defendant on motion to discharge, controverts ail the allegations of the affidavit except that of secretion, leaving that unnoticed and undenied, the motion to discharge should be refused. 3. The practical effect of denying- a part of the allegations only, is to leave those undenied as though confessed. (Syllabus by the Court.