Goldman v. Floter

SHAW, J.

The plaintiffs having begun an action upon a promissory note, and procured a writ of attachment to be issued therein, the defendant, on September 6, 1901, moved the court to dissolve the attachment in pursuance of a notice of motion which is set forth in the transcript. The court thereupon denied the motion. Thereafter, on November 4. 1901, in pursuance of notices theretofore given, the defendant moved the court to vacate the former order denying the motion to dissolve the attachment, and renewed the motion to dissolve the attachment, and by an order made on November 11th the court granted the motion to vacate the former order refusing to dissolve the attachment, and granted the original motion to dissolve the attachment. From the order made on the 11th of November the plaintiffs appeal. The bill of exceptions with respect to the motion made on November 4th and granted on November 11th contains the following statement : “And in support of said motion to set aside said former order, and in renewal of said motion to dissolve said attachment, said defendant offered no evidence.”

The appellants assume in their argument that upon a motion of this character nothing can be considered by the court unless it is formally offered in evidence. This is true, except with respect to the record culminating in the issue of the writ itself, consisting of the complaint and the affidavit of attachment. The complaint and affidavit constitute the record upon which the writ is based, and on any motion attacking the attachment they constitute part of the record, of which the court must take notice, and need not be formally introduced in evidence. The transcript should have set forth the complaint and affidavit in full.

This, however, is rendered immaterial by the fact that the parties do not dispute the nature or character of the complaint and affidavit, and by the further fact that the notice of the motion upon which the order dissolving the attachment

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was based itself describes the complaint and affidavit, and shows clearly that the motion was not based upon any defect appearing upon the face of the complaint or affidavit, but upon matters appearing outside thereof. It is stated in the notice that the motion would be made upon the ground that the affidavit in attachment falsely stated that the notes sued upon had not been secured by any mortgage, lien, or pledge, and that it failed to state that said notes were originally secured by chattel mortgages, and that the security had become valueless without any act of the plaintiff; whereas, in truth and in fact, the notes sued upon had been secured by two chattel mortgages, duly recorded in the office of the recorder of said county, and that neither the complaint nor the affidavit in attachment in any way alluded to or mentioned the said mortgages. Upon the first hearing of the motion, on September 6th, there was an admission made by the plaintiffs to the effect that the notes had been originally secured by the mortgages mentioned in the notice, but that the property mortgaged had been, before the commencement of the action, sold by order of the mortgagor, and the proceeds applied in part payment of the note, as by him directed, and that the balance sued upon was, at the time the action was commenced, in no way secured. The defendant’s contention was, that, if an attachment could be issued under these circumstances, the facts must all be stated in the affidavit in attachment, and that, if the affidavit falsely stated that the notes had not been secured, the court must, upon the facts appearing and upon a proper motion made in that behalf, dissolve the attachment. The case of