William Deering & Co. v. Warren

Citations

• 1 S.D. 35
• 44 N.W. 1068
• 1890 S.D. LEXIS 6

Syllabus

<p>1. No writ of attachment should issue without an affidavit containing- one or more of the prescribed requisites, as set forth in the statute regulating attachment.</p> <p>2. The affidavit is fundamental, and is the foundation for the jurisdiction of the court in attachment proceedings. It is the affidavit which brings the power of the court into action, and it is always the defendant’s right, and it may become that of others, to question its sufficiency to confer jurisdiction in any particular case.</p> <p>3. After a writ of attachment has been issued, there are two grounds upon which it may be dissolved: One is when the facts alleged upon which the writ was issued are untrue; the other is when some of the requirements of the statute have not been fulfilled, There are also two distinct modes of procedure. One, by traverse of the facts alleged in the affidavit; the other, by motion to vacate or dissolve, because of irregularities. The former raises the issues of fact, and the latter issues of law.</p> <p>4. A creditor holding collateral security for his debt, upon property belonging- to the debtor, can maintain an attachment against the same and other property of the debtor.</p> <p>5. Sections 4388, 4389, Oomp. Laws, have no application when the attaching creditor and the mortgagee are one and the same person. This law was enacted so that a creditor of the mortgagor, other than the mortgagee, might avail himself of the proceeds of property belonging to the'mortgagor, which had a lien upon it, after the person holding the lien had received his pay.</p> <p>6. In the absence of any statutory provisions for the appointment of agents or attorneys for the purpose, any one authorized by the plaintiff to collect may make the affidavit as one of the incidents of his authority. It is recognized as a means to the end.</p> <p>7. Attachment will lie upon a debt not due, provided the affidavit contains all the necessary averments required by statute for a debt not due.</p> <p>(