Mosteller v. Readhead , 6 Kan. App. 512 ( 1897 )

Dennison, P. J.

Anna S. Readhead and others commenced an action in the District Court of Crawford County, Kansas, against George W. Mosteller, and procured an order of attachment to be issued, which was levied upon the northeast quarter of the northeast quarter of section 13, in township 29 south, of range 23 east, in Crawford County, Kansas. The grounds for the attachment are that the defendant, Mosteller, is a non-resident of the State of Kansas and is about to assign, remove and dispose of his property or a part thereof with the intent to defraud, delay and hinder his creditors. The defendant below filed a motion to set aside and discharge the attachment for the reason that the allegations contained in the affidavit are untrue. It is also claimed that the property levied upon is the homestead of Mosteller and his family. Affidavits were read in support of the motion, and counter affidavits were read resisting the motion. The court overruled the motion and sustained the attachment. Mosteller brings the case here for review, and alleges that the court erred in overruling the motion to discharge the attachment and in holding the land liable for the payment of the defendant in error’s judgment.

The motion was heard and submitted wholly upon affidavits, and we are asked to review the facts and determine whether the preponderance of the evidence supports the findings of the court. The evidence is conflicting upon most of the facts, but we think it can be said that the uncontradicted evidence establishes the fact that Mos’teller moved his family to California, that he tried to sell his farm in Crawford County, Kansas, and that he became a voter and voted in California.

These undisputed facts, together with the showing made by the conflicting evidence, are, we think, sufficient to warrant the conclusion that Mosteller was a non-resident of Kansas and was a resident of California, and that he had abandoned the farm levied upon, as his homestead.

The judgment of the District Court is affirmed.