833 SALMON V. MILLS 8C
aL
(otrmdt Court Qf
Eighth Circuit. February t, t899.)
L
ATTACHMENT-MoTION TO VAOATE-WAIVER.
Under Mansf. Dig. Ark. §§ 881, 883, (in force in the Indian Territory,) a motion to vacate an attachment is not waived by filin.g affidavits controverting the fliCts statod in the affidavit of attachment, and the motion may be heard and disposed of after the questions raised by the affidavits have been decided by the verdict of a jury, and such verdict has been set aside by the court on motion for a new trial. Under the provisions of Mansf. Dig. Ark., a defendant in attachment may move to vacate the attachment though he disclaims any interest in the property.
S.
SAME-DISCLAIMER 011' PROPERTY.
.. SAME-AlI'lI'IDAVIT-AMENDMENT.
Mansf. Dig. Ark. § 815, declares that affidavits may be amended so as to embrace any grounds of attachment that may exist 'up to the time of the first judgment on the same, .Section prOVides that pleadings may bema,de definite .and certain by amendment, and section 881 declares that the affidavit of attachment and the affidavit controverting the same shall be considered as the pleadings on the issue as to the attachment. HeW. that, under provisions, an.affidavit whf,cb, uncertain because the disjunctive is used between the stateJDent ot ,grounds may,be amended on motion made immediately after it is held izisuflicient by the cour,t., . . An issue on attachment was tried by a jury, and found for the plaintiff. The a new trial, and. afterwards, on motion to vacate the attachment; held the aflldavit insufficl.en,t, whereupon plaintiff moved to amend it. . Beld, that the court could not refuse the amendment on the ground that from its of the evidence on the jury trial the amendment would not be in furtherance of jQ.8tice. . .' , . ' , . .' . . . .'. .... ·
" ,SAME-J)ISOBETION OJ' COURT.
,
In Error to United States Court for ' Ge(YT'ge E. Nel8cm, for plaintiff in error. . ' Nelscm (lase andW. B. Glasse, for error. .' '., Before CALDWELL, Circuit Judge, and SHIRA.S and THAYER, DiStrict Judges. SHIRAS, District JUdge. On the 2d day of May, 1889, the plaintiff in error filed in the United States court for the Indian Territory a complaint at law, wherein he sought judgment against Abraham and Jackson Mills for the sum of $9,983, claimed to be due on ,two promissory notes, and in aid of such action he. sued out a writ of. attachment alagainst the property of the defendants above named. leged for the issuance of tQe attachment were set .forth in tQe aftidavit accompanying the complaint in the following form: "That said Abraham and Jackson Mills are about to remove, and have removed, their property, or a material part thereof. out of the Indian Territory, not leaving enough therein to satisfy plaintiff's claim or tbe claim of said defendants' creditors; second. have 8014. conveyed, and otherwise disposed of their property. and suffered and permitted it to be sold; with the frauduleI;lt intent to cheat, "hinder, or delay, t,heir creditors; or, third, are about to sell and conveyor otherwise dispose of their property with such in. .
The writ was issued and served by levying upon certain cattle and horses; and thereupon one C. M. Condon, claiming to be the owner _f the property levied on, save one horse, .obtained leave in
FEDERAL. REPORTER,! vol.
49.
the cause and assert his right to the attached property. On the 3d day of June, 1889, the defendants filed a m.otion. to vacate and discharge the order for the,attachment and .all proceedings had thereunder on the grounds that the affid!l.vit filed forthe attachment was insufficient, the bohd filed was illegal, and the grounds set forth in the 'affidavit for the attachment were not true in point of fact. Subsequently the defendants filed l!-nswers to the attllchmentproceedings, in which they traversed the several grounds set forth in .the affidavit already quoted, and claimed damages for the injury alleged to have been caused them by reason of the wrongful issuance of the writ. On the 24th day of May, 1890, jndgment was entered in favor of the plaintiff for the sum shown to be due on the note sued on, and against the defendants, but expressly reserving for future deterxnination all questions arising on theattachlllent proceedings and the interplea filed by C. M.Condon. In Deoember, 1890, a trill I was had before the oourt and jury upon the issues arising upon. the answer to the attaohment proceedings and upon the interplea, and on the 15th of De1890, the jury i'eturneda verUict in favor of .the plaintiff, Salmon, on all the issues thus submitted. On the 22d of Deoember, 1890. the court, on motion, set,aside this verdict, and granted a .new trial 'to the defendants and the interpleader. On the 4th day of June, 1891, defendants called. up. their to vacate the attachment, and upon the hearing thereofthe court sustained the same, tht' plaintiff duly exoepting thereto, and thereupon the plaintiff asked leave to amend the affidavit for attachment by substituting the word "and" for "or" between the second and third grounds of attachment as set forth in the affidavit hereinbefore quoted; but the courtrefusetlleave so to !-lo, holding that the affidavit for attachment was not amendable, and that, even if it was permissible to amend sam.e;the court fouhd, from. the evidence adduced on the former trial, that to allow the amendment would not be in furtherance of justice, to which ruling the. plaintiff excepted, and thereupon the court vacated the attaphmentand the levy made thereunder. To reverse this ruling and order the plaintiff sued out a' writ of error froP'! this court. The first point made on behalf of the plaintiff in,etror is that the de{andants, by filing affidavits controverting the truth of the allegations of fact contained in the affidavit for the attachment, and going to trial on the issues thus presented; waived their right to be heard on the motion to discharge the writ previously tiled. The Rctof congress of May 2,1890, put in force in th.e Indian Territory certairi portions of the statArkansas, including. the chapter regulating the issuance of writs .and of vacating such writs when issued, and ofllontroverting the truth of the facts aV'erredos grounds for the issuance thereof.' Section 383, c.9" of Mansfield's Digest of the Statutes of ArltllnsftS\ provides....-· .. .. , , , any tiIn,e tpe.attachmeptlssustail1ed. the defendant, upon reasonable notice totbe plaintiff 01' bis attorney, may move the COllrt to disc!Jat"ge the attachment, the hearing of which may be postponed by the conrt, ilpon'sullicient cause, from tilnlltu time; and on the hearing, if thecou..t
·SALMON .,. HILIS.
335
of the' opinion that the attachment w8sobtained 'without sufficient cause, or thatth,e,gl'Ounds of the attachment, are not sustained, the attachment shall be discharged." Section 381 provides that--"The defendant may tile his affidavit denying all the material statements of thell.ffidavit on which the attachment is issued, and thereupon the attachment shall be considered as controverted, and the affidavits of the plaintiff and defendant Shall be regarded as the pleadings in the attachment, and shall have no other effect." Therefore, to make an issue upon the truth of the facts alleged in the affidavit for the attachment, it is necessary to file an affidavit denying the same,and if, upontbe hearing of the issue thus marie, it is decided that the attachment is not sU8tained, then the court can grant the m&tion to vacate the attachment. Reading these two sections together, it is,entirely clear that the defendant may tile a motion to vacate, and also tpay take issue upon the facts, by controverting'the affidavit upon which the writ issued, and the court may postpone action on the motion until the issue: of fact is detertnined, and then decide:themotionin light of the result reachecl upon that issue. Tbere was, tberefore, no errol' in tHe action of the court in ,postponing' consideration of the motion until the trial of tbeisaue of fact, ancl the,filing of the affidavits by defendants controverting that or plaintiff did not waive the motion: The second pointsubmittecl by pJaintiffin error is that the defendants had not the right to move for the vacation of the writ of attacbment, because they disclaimed any interest intbe property upon which the writ was -levied. If the motion was merely to discharge the levy of the w.rit, this objection might have weight, but, under the provisions of the stat,. ute in force in the Indian Territory, itis clear tbat a defendant in an attachment proceeding may move for the .vacation of the writ,.aud may controvert the grounds upon which the attachment was sued out, regardless of the faot·whethefthe·writ has Or has not been levied upon his property. Counsel for plaintiff in error cite several·cases decided by the supreme court of Michigan in support of the position stated, but these decisions are based upon the provisions of the statute of that state; which limit the right to move for the dissolution of the writ to cases wherein a 'Writ of attachment has been issued and served, whereas the statute of Arkansas, in force in the Indian Territory, contains no such limitation,but, on the oontrary, expressly provides that at any time before the attachment is sustained the defer.dant may move for its discharge, and we cannot read into the statute a limitation not therein expressed or fairly inferable from the language used·. See Doggett v. Bell, 32 Kan.298, 4 Pac. Rep. 292; Boot & Shoe Co. v.Der8e, 41 Kan. 150, 21 Pac,. Rep. 167; ClaU88e1l'v. Erlsterling, 19 S. C. 515; Bank.v. Randall, 38 Minn. 382, 37N. W. Rep. 799; Keith v. Arm8trong, 65 Wis. 225, .26 N. W.Rep. 445. ,This brings us to the consideration of the action of the court in holding that ,the statements in the affidavit for the attachment were iusum;. cient to sustain the .writ, and in refusing leave to complainanttoainend
FEDERAY. REPORTER.
vol. 49.
the affidavit. As we gather the facts from the record, the court below held theaffidaYit bad because the disjunctive "or" was used between the second and third grounds for the attachment set forth in the affidavit, and, though not expressed. is implied between the first and second. thus making the affidavit indefinite and uncertain in that, in effect. it charged the defendants with one of three acts without specifying which one was, in fact. :relied upon as ground for the issuance of the attachment. It is not necessary to determine whether such construction of the affidavit was correct or not. because we are clearly of the opinion that the court below erred' in refusing leave to amend the affidavit so as to render it free from all tlimbiguity. The record shows that when the court announced its eonstruction of the affida.vit. and held it to be insufficient, counsel for plaintiff 'in error asked leave to amend the same, but ,the court held that the affidavit was not amendable. Section 315 of Mansfield's Digest of the Laws of Arkansas, being part of the chapter regulating the subject of attachments t declares that "the affidavit or grounds of attachment may be 'amended so as to embrace any grounds of attachment that may existup to'8.nd until the first.judgment upon the same. n Section5082 of the same digest provides that" when the allegations of a pleading are ad indefinite and uncertain that the precise nature of the claim or defense ianot apparent. the court. may require the pleading to be made definite and certain by amendment;'1and, as already stated, by section 381' it is' declared that the affidavit· for the attachment, and that filed by a. defendant controverting the same, shall be deemed to be the pleadings 0(: the parties on the issue upon the-attachment. 80 that it is entirely clear that the statute conferred upon the court fun and ample authority to permit the amendment of the affidavit in the particulars wherein the deemed it to be uncertain and insufficient. That this is the correct construction of the statute is put beyond question by the rulings of the supreme court of Arkansas in the following cases: Rogers v. Cooper, 33 Ark; 406; Sherrill v. Bench, 37 Ark. 560; Nolen v. Royston, 36 Ark. 561;Sannoner v. Jacobson, 47 Ark. 32, 14 S. W. Rep. 458. It is, however, claimed by the defendants in error that the court below also ruled that, if the power to permit an amendment of the affidavit existed, leave would be refused. because the court, having heard the eviJence adduced on the trial of the issue of fact before the jury, found therefrom that the allowance of the amendment wonld not be in furtherance of justice, and therefore refused it. It will be recalled that it appears from the record that the issue made upon the truth of the allegations contained in the affidavit for the attachment was tried before a jury, and resulted in a verdict sustaining the truth thereof, or, in other words, in favor of the plaintiff. This verdict was returned December 15, 1890,/ and was set aside by the court, thereby granting a new trial on this issue. The hearing upon the motion to discharge the writ was had June 3, 1891, and no evidence was then introduced on the issue of fa.ct t ' but the matter carne up for hearing upon the face of the papers. The plaintiff was clearly entitled to a trial in the usual form upon this issue'offaet, which had once been decided in his favor, and it was clearly
'YARDLEY
v.
CLOTHIER.
337
erroneous to hold that the plaintiff ought not to be allowed to amend the affidavit, ):>ecatise, if that was put into proper and sufficient form, the court, trom its recollection of the evidence adduced on the trial before the jury, of the opinion that the plaintiff would be beaten on the issue of fact.. Such a .modEl of disposing of the case effectually cut off the plaintiff from add.ucing any additional evidence he might have at hand on the issue of fact, and debarred him from saving any exceptions he might have to the Fillings of the court; or, to state the case shortly, it gave judgment against the plaintiff without a hearing, and without opportunity to preserve his right to be heard before the appellate court. " For the reasons assigned, the order and judgment appealed from are reven>ed,and the CaUBa is remanded, with instructions to permit the plaintiff to amend the attltchment proceedings by the affidavit within the limit by the statute, and by substituting a sufficient bond if :objection is mllde'on that ground; the plaintiff to recover the <losts of this writ of
YARDLEY fl. Cl'mHmR.·
(Cfrcuit Court"E. D. pennsybvan/la: J"nua1'1 II, 1899.) I:NSOLVEN'l' BA;n-RIGHTS OJ' DEPOSITORS-SET-OFF.
AdepQllitor in an inllolvent bank, who had indorsed a note that was subsequenl>ly discoU,nted by said bank,. ClIn, in a suit by the blink to recover the amount of the note. set off his deposit against this amount, when the note matured after the in1lO1vency oBhe blink. Refusing to follow Armstrong v. Scott. 36Fed. Stephens v. Schuchmann, 82 Mo. App. 333. Bank v. Price, 22 Fed. Rep. 69'1, dis.
At Law. Motion for juqgment on case stated· ..4.B8umpB'it by Richard Yardley, receiver oithe Keystone National Bank, against George W. Clothier; to recover the amount of a note indorsed by said defendant and discounted by said bank. Rule John ;E. .Read and. Silas. W. Pettit, for plaintiff. ' ?Jeo. W. Harkins, for defendant. Before ACIlESON, Circuit Judge, and BUTLER, District Judge. BUTLER, District Judge. The facts, (presented in a case stated,) so far as material; are that the plaintiff is receiver of the Keystone National Bank; that, a.tthe time of its insolvency, it was indebted to the defendant in the sumo'f $1,127.96; that, at the same time, it held three notes indorsed by him, not then due, aggregating in amount $390; that the notes were not paid by .the maker, and were duly protested, of which notice was given; that the plaintiff sues on these notes, and the defendant sets up the indebtedness to him as.8 defense. J
Mllrk Wilks.
Esq., of the PhUlldelphia bar.
v.49F.no.5-22