Bradley v. Interstate Land & Canal Co.

Citations

• 12 S.D. 28
• 80 N.W. 141
• 1899 S.D. LEXIS 70

Syllabus

<p>1. Under Comp. Laws 1897, § 4993, as amended by Session Laws 1895, Chap. 67, which provides that in all actions against corporations created by and under the laws of any other state which have not “complied with the la wo of this state relative to the appointment of agents upon whom service of process may be made * * * the plaintiff at the time of issuing' the summons or at any time afterward may have the property of such * * * corporation attached as a security for the satisfaction of such judgment as the plaintiff may recover,” and Section 4995, which provides that a warrant of attachment may issue upon affidavit of the plaintiff or his attorney stating that a cause of action exists against the defendant, specifying the amount of the claim and the ground thereof, and that the defendant is either a foreign corporation or not a resident of this state, it is not incumbent on the attaching creditor to state in his affidavit that the corporation has not complied with the laws of the state relative to the appointment of an attorney on whom service of process may be made; but the burden of proving the fact that the corporation has complied with such requirement rests upon it, and, if shown, deprives the credit- or of his right to the attachment.</p> <p>2. Comp. Laws 1887, Section 4993, as amended by Session Laws 1895, Chap. 67, is not so inconsistent with Comp. Laws, § 4995, as to repeal the latter section.</p> <p>3. A junior attaching creditor, to sucessfully attack a prior defective attachment, must affirmatively show that every step of his own proceedings by which ho acquired a lien upon the property was regular and in accordance with law.</p> <p>4. Where it does not affirmatively appear from the record that an objection raised on appeal was not made on the trial in the court below, and it does not appear from the record on what ground the court below made its order, it is the duty of the supreme court to sustain the trial court, if there is any ground disclosed by