Lang v. Shanawolf

Urner, J., delivered the opinion of the Court. The appeal in this case is from an order’ sustaining a motion to quash an attachment issued, under Article 9, Section 26 of the Code, on the plaintiffs’ affidavit, that they had good reason to* believe that the defendant had assigned, disposed of or concealed, or was about to assign, dispose of or conceal, his property or some portion thereof with intent to defraud his creditors. Tt was proven at the trial on the motion that the defendant was indebted to the plaintiffs on a promissory note for $1,471.47 maturing April 20th, 1919; that, prior to the maturity a month earlier of another note for the same amount, the defendant had advertised for sale the motor trucks and automobiles used in his business of packing and selling sauerkraut and other products; that the note which first became due was paid out of the proceeds of the sale of one of the motor trucks; that the second note was not paid at maturity, and in the course of the ensuing week one. of the plaintiffs made repeated efforts, without success, to find the defendant at his place of business; that he found no one there except one employee, and saw no activity about the place until the occasion of the third of his daily visits, when he observed a wagon hauling goods away; that the next, morning there were three wagons engaged in that work, and on returning there with his counsel in the afternoon he found five wagons on which goods were being rapidly loaded and ¹⁹ removed, the information given by the men thus employed being that the goods were all to go to a broker, whom they named, and that their instructions were to move the stock as quickly as possible. In view of these developments, the attachment was immediately sued out and levied upon the portion of the stock of goods which had not yet been removed.

While the circumstances may have been sufficient to enable the plaintiffs to make in absolute good faith the affidavit which was essential to the issuance of the attachment, yet the evidence in the case conclusively proves that the defendant in fact had not disposed, and was not about to dispose, of any part of his property with intent to defraud his creditors. The undisputed proof is that, because of a fall in the sauerkraut market, following the Armistice in November, 1918, the defendant was advised by his bank to start liquidating and to begin by selling his trucks; that he then had a stock of goods worth about $25,000.00, and real estate of the value of $13,500.00; that the plan was to provide for the creditors by realizing on the stock of sauerkraut, and the bank advanced money to have it canned, as it could be sold to better advantage in that form; and that, the proceeds of all sales were