Queen v. Rosenfield Bros. ( 1873 )

Opinion by

Judge Lindsay:

Upon the final trial appellee introduced no testimony whatever to sustain the grounds of attachment against Hayden. The amended petition of July 19, 1872, alleging that the mortgage from Hayden to Queen was fraudulent, was not such pleading as Hayden was bound to answer, as it did not affect appellee’s right of recovery against him, and it was not denominated nor intended to be an amendment to the affidavit for the attachment. The existence of the grounds for attachment were especially denied. Appellee was bound to sustain them. He did not attempt to do so. Hence his attachment should have been discharged. As Queen was claiming a superior lien under his mortgage the amended petition of July 19, 1872, put him upon the proof of his debts. He failed to establish it, and therefore, his petition was properly dismissed, but this failure by Queen did not authorize the court to presume a fraudulent sale, or attempt to sell by Hayden. The judgment sustaining the attachment must be reversed. The cause is remanded for proper proceedings.