Hood v. Fay
Hood v. Fay
Opinion of the Court
This is an appeal by the plaintiffs from an order dissolving and vacating an attachment. On December 26, 1900, the plaintiffs commenced an action against the defendant by the service of a summons to récover the sum of $3,789 for goods, wares, and merchandise sold by the plaintiffs to the defendant. At the same time the plaintiffs filed an affidavit for an attachment, alleging as grounds for the same “that the defendant procured said goods to be sold and delivered to her by plaintiffs by reason of false and fraudulent representations made by her to plaintiffs, and that the debt was incurred for property obtained under false pretenses.” Thereupon an attachment was issued, and levied upon the real and personal property of the defendant, and on the following day the defendant served notice of a motion to dissolve and vacate the said attachment, based upon an affidavit, in which she fully denied the grounds stated in the affidavit for the attachment. On January 2, 1901 — the time fixed in said notice for hearing — the plaintiffs applied for a continuance of the hearing, and the same was continued until January 5, 1901. On that day the defendant presented affidavits in support of the motion, and the plaintiffs presented certain affidavits in rebuttal. Prior to the hearing plaintiffs had applied for leave to amend their undertaking on the attachment, which was granted, and a new undertaking filed. On the 7th day of January
The assignment of errors may be briefly stated as follows: That the court erred in refusing application of appellants for an order of the court requiring Snowden to appear before the court or referee and give his testimony; that the court erred in refusing to grant the plaintiffs time to procure the testimony of said Snowden; that the court erred in not requiring the said Snowden to appear before a referee and give his testimony; that the court erred in refusing to allow plaintiffs’ motion to amend their testimony; that the court erred in refusing to allow the plaintiffs to have and consider the affidavit of G. K. Patterson; that the court erred in granting said order dissolving said attachment; and that the court erred in refusing to sustain said attachment, and in not overruling the motion to dissolve the same. The appellants, however, in their brief, do not, as we understand it, seriously contend that the court erred in granting the order upon the evidence then before it, but they rely mainly upon the alleged error of the court in not granting the continuance or extension of time asked for on the 7th of January. The only
We have not deemed it necessary to set out the affidavit of Mr. Patterson in full, as its reproduction in this opinion would serve no useful purpose. It is sufficient, therefore, to say that'in the case at bar it appears from the record , that, although, the amount claimed was $3,789, a stock of goods valued at from $12,000 to,$.15,000 had been taken into his possession by the sheriff under the writ of attachment, and defendant’s store closed, and yet the appellants had been granted one continuance, and permitted to amend their proceedings by substituting a new undertaking on the attachment.
In view of all the circumstances, therefore, this court cannot say that the trial court abused its discretion in denying the continuance or extension of -time asked for. The order of the circuit court is affirmed.
Reference
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- 1. Plaintiff in'an attachment suit moved before the hearing that the court-extend the time within which he might file certain affidavits and , , proofs to amend those theretofore filed in support of the affidavit of attachment, on the ground that, they were newly discovered evidence, stating that, owing to the fact that such evidence was not known to plaintiff when he filed his original affidavits, it was not then presented. Held, that such motion was for a continuance of the case for the purpose of securing further evidence, and not for the purpose of amending affidavits or proceedings. 2. Plaintiffs attached' a stock of goods valued at between four and five times the amount of their claim, and defendant’s store was closed. On the hearing plaintiffs were granted a continuance, and permitted to amend their proceedings by substituting a new undertaking, and thereaiter moved for another continuance on the ground of surprise and inadvertence, but the affidavit in support thereof did not state facts showing wherein plaintiffs were surprised, or in what the inadvertence, consisted, nor was it shown within what time the evidence could be produced. . Held, that a refusal to grant t'he continuance was not an abuse of the trial court’s discretion.