Wherefore said defendants move the court to dissolve the attachment levied in said above entitled action, and to discharge the property in said action attached from the lien and levy of attachment, and that they have their costs in this behalf, and such other and further relief as may seem to the court just and equitable.

(Verification.)

§ 1819. Grounds-In general

X. Y., Attorney for Defendants.

Failure to state a cause of action,20 falsity of allegations," pendency of another attachment action between the same parties for the same cause,81 and the like, are grounds for discharging an attachment.

An affidavit and publication notice which are void are ground for discharge of an attachment.32

While an affidavit for publication should be filed separately from the affidavit for attachment, the supreme court will not hold it error for the trial court to refuse to dissolve an attachment where the affidavit for attachment may be held good also as an affidavit for publication.38

29 If the petition in an action by attachment does not state a cause of action against defendant, the court, in the absence of amendment of the petition, or if it is incapable of amendment, is justified in dissolving an attachment before a final hearing on the merits. Carnahan v. Gustine, 37 P. 594, 2 Okl. 399.

30 Upon a motion to dissolve an attachment, the judge may inquire concerning the facts alleged as grounds for the attachment; and, if it be established that such allegations are not true, the attachment will be dissolved. Doggett v. Bell, 4 P. 292, 32 Kan. 298.

31 Where there is another action pending between the same parties for the same cause, in which an order of attachment has been issued, and the property of defendant levied on, such pending action and attachment proceedings are sufficient grounds for a district judge to discharge the attachment. SmithFrazer Boot & Shoe Co. v. Derse, 21 P. 167, 41 Kan. 150.

32 In suit against a nonresident, in which attachment issued at time of filing petition, an affidavit for service by publication was also filed on the same date, and the first publication made within 60 days from such filing, but the affidavit and publication notice were so defective as to be void. Held, that a motion to discharge the attachment and dismiss, made more than eight months after such filing and return of the attachment, was properly sustained, as suit had not been commenced. Ballew v. Young, 103 P. 623, 24 Okl. 182, 23 L. R. A. (N. S.) 1084.

33 Raymond v. Nix, 49 P. 1110, 5 Okl. 656.

HON.PL.& PRAC.-107

(1697)

Where a bond is irregular, and leave is given to file a new bond, it is error to discharge the attachment.

§ 1821. Jurisdiction

34

A judge has power at chambers to discharge attached property from the lien of the attachment.35

§ 1822. Persons who may move

A mortgagor in possession of personalty may move to discharge an attachment.36*

An agreement after attachment that the sheriff shall sell summarily, and retain or deposit the proceeds to abide final judgment, precludes defendant from insisting on a dissolution of the writ.37

§ 1823. Proceedings on motion

A motion to discharge an attachment, which contains an explicit denial of the allegations in plaintiff's affidavit for attachment, is sufficient to raise an issue as to the truth of the grounds laid for attachment, and a verification of the motion or of the allegations of denial is not essential.38

Defendant, on the hearing of his motion, may not strike out the

34 Where a bond is conditioned as provided by Wilson's Rev. & Ann. St. 1903, § 4367, instead of as required by Act March 15, 1905 (Laws 1905, p. 325, c. 28), amendatory thereof, it was error to discharge the attachment after giving leave to file a new bond, such as required. Wells v. McCrady, 103 P. 605, 24 Okl. 295.

35 Moffett v. Boydstun, 46 P. 24, 4 Kan. App. 406.

A motion to dissolve an attachment and to have the property restored to the defendant may be heard and disposed of by a judge at chambers, Wilson's Rev. & Ann. St. 1903, § 3307, granting such power, not being violative of the organic act of the Territory of Oklahoma (Act Cong. May 2, 1890, c. 182, § 9, 26 Stat. 85), relating to the judicial power. Bash v. Howald, 112 P. 1125, 27 Okl. 462; Rev. Laws 1910, § 5318.

86 The fact that a debtor has mortgaged his property, which is subsequently attached, will not preclude him from moving for a discharge of the attachment or of the garnishees. P. Cox Mfg. Co. v. August, 32 P. 636, 51 Kan. 59.

A mortgagor of personalty, who retains possession of it, has such an interest in the property as will enable him to move for the dissolution of an attachment levied upon the property by a third person in an action against the mortgagor. Hosea v. McClure, 22 P. 317, 42 Kan. 403; Id., 22 P. 319, 42 Kan. 408; Henry v. Same, 42 Kan. 408, 22 P. 319; Symns Grocer Co. v. Lee, 9 Kan. App. 574, 58 P. 237.

37 Collier v. Gannon, 137 P. 1179, 40 Okl. 275.

38 Wm. W. Kendall Boot & Shoe Co. v. August, 32 P. 635, 51 Kan. 53,

statement from the motion, verified by him, that he did not own the attached property, which was sufficient to defeat the motion.39 Where defendant enters a general appearance and no irregularity in the issue and service is insisted upon, such irregularities are waived and cannot be raised in a subsequent motion to dissolve for want of jurisdiction.40

1824. Affidavits of defendant

Where a motion is not supported by an affidavit, the court, when such motion is called for trial, may allow defendant to file an affidavit denying the allegations in the attachment affidavit.11 The defendant need not state in his notice that affidavits will be used in support of the motion, but it is better practice to do so.12 The sufficiency of a traversing affidavit should be tested by motion or by demurrer and not by mere objection to evidence.43

§ 1825. Affidavits of plaintiff

"If the motion be made upon affidavits, on the part of the defendant, or papers and evidence in the case, but not otherwise, the

39 People's Nat. Bank v. Morris, 80 P. 586, 71 Kan. 849.

40 In an action on an account not due, defendants made a general appearance, and filed a motion to dissolve the attachment for the reason that the grounds set forth in the affidavit were false. This motion was overruled, and the facts necessary to give jurisdiction established. In the motion to dissolve, no irregularity in the issue and service of the order of attachment was stated or insisted upon. Held, that all questions of irregularity were waived and could not be raised on a subsequent motion to dissolve for want of jurisdiction. Hillyer v. Biglow, 28 P. 150, 47 Kan. 473. Where a motion by the statutory assignee of a defendant in attachment to dissolve the attachment has been overruled, a similar motion made without leave of court by his successor is properly stricken from the files. Id.

41 Dunn v. Claunch, 76 P. 143, 13 Okl. 577.

42 Defendant in attachment moved to dissolve because the grounds laid for the same were untrue, and at the same time filed an affidavit to that effect, but he did not state in his notice to plaintiff that affidavits would be used on the hearing of the motion, as required by Civ. Code, § 534. At the time set for the hearing plaintiff asked and obtained a continuance, to enable him to procure evidence to resist the motion and affidavit. At the final hearing the affidavit was admitted in evidence over the objection of plaintiff. Held, that defendant's failure to state in his notice that affidavits would be used on the hearing did not render the reception of the affidavit prejudicial error. Meyer Bros. Drug Co. v. Malm, 47 Kan. 762, 28 P. 1011.

43 First Bank of Texola v. Terrell, 44 Okl. 719, 145 P. 1140, Ann. Cas. 1917A, 681.

plaintiff may oppose the same by affidavits or other evidence, in addition to that on which the order of attachment was made." "

§ 1826. Hearing

On a motion to dissolve an attachment, the burden is on plaintiff to justify the attachment and to produce any evidence in his possession tending to justify it.45

The issues made by defendant's motion to discharge an attachment traversing the existence of the grounds alleged in the affidavit are triable to the court, but a defendant who does not insist upon a decision by the judge, after judgment is entered on a verdict sustaining the attachment, will be deemed to have waived the determination thereof by the judge instead of by a jury. On a motion to discharge an attachment traversing the existence of alleged grounds therefor, it is error to submit the issue to a jury for general verdict, instead of for special advisory findings of fact, and to base a judgment upon such general verdict.10

A judge can continue the hearing of a motion, even after announcing his decision, upon the application of the party against whom the decision was made.47

Only the truth of the affidavit on which the writ issued should be tried, and, for that purpose, evidence, either oral or by affidavit, may be introduced.48

Depositions may be used in evidence, though taken upon insufficient notice. They are the written declarations of the witnesses, and fulfill the statutory definition of affidavits, irrespective of any question of notice.1o

Where an attachment is procured on the ground that defendant is a nonresident, and a motion to dissolve, supported by affidavit, is filed, the question presented is purely one of fact, dependent on the evidence introduced on the motion to dissolve."

44 Rev. Laws 1910, § 4863.

45 Brown v. Williams, 57 Okl. 699, 157 P. 311.

46 Millus v. Lowrey Bros., 63 Okl. 261, 164 P. 663, L. R. A. 1918B, 336. 47 Hanna v. Barrett, 18 P. 497, 39 Kan. 446.

48 Carnahan v. Gustine, 37 P. 594, 2 Okl. 399.

Evidence on a motion to discharge from attachment the proceeds of a homestead, held not to show a purpose, formed and adhered to, to devote such proceeds to the purchase of a new home. Milberger v. Veselsky, 155 P. 957, 97 Kan. 433.

49 Hanna v. Barrett, 18 P. 497, 39 Kan. 446.

50 Williams v. Farmers' Gin & Grain Co., 73 P. 269, 13 Okl. 5.

On the trial of the issue presented by a motion to discharge an attachment, the court need not inquire into the merits of the action; but, if the grounds of attachment set forth in the affidavit incidentally refer to allegations of the petition, that does not compel it to refuse consideration of the motion. 52

51

An objection to evidence on a motion to dissolve an attachment, because the motion, not previously objected to, does not traverse the grounds laid in the attachment affidavit, will be overruled, unless the traversing affidavit is wholly insufficient.

Where an affidavit for attachment is in the language of the statute, and unaccompanied by any facts showing it to be true, and defendant by affidavit positively denies the existence of the facts stated, the burden is on plaintiff to establish the same.54 If defendant, notwithstanding his affidavit denying the existence of any grounds of attachment, introduces his evidence without objection, he waives any error of the court in not dismissing the attachment for want of evidence by plaintiff.5"

On a motion to dissolve, controverting the truthfulness of the grounds alleged, supported by an affidavit of the defendant, an issue is joined on the question of attachment, and the burden of proof is on the plaintiff to support his affidavit by the preponderance of the evidence.56

51 McComb v. Watt, 39 Okl. 412, 135 P. 361.

Where the ground of an attachment, that the defendant has made a general assignment of his property with intent to defraud, is denied, and a motion made to dissolve, the validity of the assignment cannot be questioned, but only the fraudulent intent with which it was made. McPike v. Atwell, 8 P. 118, 34 Kan. 142.

52 Carnahan v. Gustine, 37 P. 594, 2 Okl. 399.

58 First Bank of Texola v. Terrell, 44 Okl. 719, 145 P. 1140, Ann. Cas. 1917A, 681.

54 Dunn v. Claunch, 76 P. 143, 13 Okl. 577.

55 Dunn v. Claunch, 76 P. 143, 13 Okl. 577.

Where in an action an attachment was issued on an affidavit charging that defendant was about to remove and dispose of his property to defraud his creditors, an order dissolving the attachment for insufficiency of the evidence to sustain the affidavit held proper. Board of Com'rs of Morton County v. Wilson, 128 P. 179, 88 Kan. 309.

56 Williams v. Farmers' Gin & Grain Co., 73 P. 269, 13 Okl. 5; Becker v. Langford, 17 P. 648, 39 Kan. 35.

On the hearing of a motion to dissolve an attachment, which is supported