Wichman v. Fox

The opinion of the Court was delivered by

Mr. Justice Fraser.

The appellants state their case as follows:

“This is an appeal from an order of his Honor, Judge J. W. DeVore, refusing to dissolve an attachment issued on the ground that the defendants were about to dispose of, or had disposed of, the property belonging to them with the purpose and intention of defeating or defrauding their creditors, and especially plaintiff. The ground for the motion to dissolve being that no facts or circumstances were stated from which it could be inferred that defendants were acting or had acted as they were charged with doing. There are five exceptions, but these exceptions raise practically two points: First, that the affidavit on which the attachment was issued did not state facts or circumstances sufficient to authorize its issuance, and second, because the undertaking, which was given to secure said attachment, was not properly executed.”

The affidavit upon which the attachment issued alleged that the plaintiff was the assignee of three notes of J. R. Fox and S. J. Fox, one dfie on 1st January, 1911, and there was due thereon four hundred and ninety-seven 20-100 dol lars, and no part thereof has been paid; the second note was due on 1st November, 1911, and there was due thereon five hundred and forty-nine 19-100 dollars, no part of which had been paid; the third promissory note due on 1st December, 1911, and there was due thereon five hundred and forty-seven 83-100 dollars. That in April, 1912, the defendant, S. J. Fox, conveyed a tract of land worth ten or twelve thousand dollars to two of her children for ten dollars. That J. R. Fox had no property, and S. J. Fox had no other property except a house and lot of small value. That suit was brought on said notes, and the defendant allowed her time to answer to go by without putting in an answer. That the defendants were allowed to answer on condition that they execute a bond to pay any judgment that should be obtained, and the failure to execute the bond. On these facts the plaintiff asks for an attachment.

It seems that the facts and circumstances were sufficiently set out.

2 R. H. Wichman was a plaintiff. A. Wichman & Son is a mere trade name. R. H. Witchman is the real plaintiff, as set forth in the caption of the case and in the affidavit. R. H. Wichman, then, is the proper name in which to execute the bond.

The appeal'is dismissed.

Footnote. — As to fraudulent sale or conveyance of property as ground for attachment, see note in 5 A. & E. Ann. Cas. 618; and as to what intent to defraud will sustain an attachment, see note in 30 L. R. A. 465 to 490.