Philip v. Siering

Per Curiam. The appeal as stated in the notice is from “ the order overruling the demurrer, from the order directing a judgment and execution herein, and also from the judgment therein made and entered in the said Superior Court on the 20th day of April, 1881, in favor of the plaintiffs in said action, and against said defendants, and from the whole thereof.”

The demurrer to the complaint was properly overruled.

The answer alleges that after the commencement of this action the defendants were duly adjudged insolvent debtors, and all proceedings against them were stayed.

After the answer was filed the plaintiffs gave notice of motion for judgment upon the pleadings, on the ground that the attachment in the action was issued and property attached more than thirty days prior to the filing of the defendants’ petition in insolvency; and it was stated in said notice that said motion would be based upon the pleadings, affidavit, and undertaking on attachment, the writ of attachment and return thereon of the sheriff, and upon all the papers on file in the action.

It does not appear from the transcript what papers were before or considered by the court upon the hearing of that motion. But it does appear that the court granted the motion and directed that the judgment should be enforced only against the property attached.

The judgment recites that it appeared to the court that property of the defendants had been seized and levied upon by the sheriff by virtue of a writ of attachment issued in this action more than one month before the insolvency proceedings were initiated by the defendants; that said property ivas then still in [280]the hands and custody of said sheriff, and that said attachment had not been dissolved and was then in full force.

It is incumbent on a party who alleges error to make it apparent. That the record now before us fails to do.

Judgment affirmed.