Page:North Dakota Reports (vol. 1).pdf/231

 ment. The writ of attachment was issued upon the affidavit of H. F. Miller, attorney for plaintiff, setting fgrth the statutory ground of defendant’s non-residence, and reiterating the statement that the debt was due. The warrant of attachment was delivered to the sheriff of Cass county on December 27, 1887, and on the same day an alias warrant was delivered to the sheriff of Richland county. Both writs were served by attaching all of the property of the defendant in the respective counties. No motion was ever made, or proceedings of any kind had, to discharge such attachments. In due time the defendant answered, setting forth that the sum of $1,364.69 of said account was not due when the action was commenced, and would not be due until the following January, and that to that extent the action was prematurely brought. Afterwards, and on December 3, 1888, plaintiffs served upon defendant a notice of motion for judgment on the pleadings in the action, stating that said “motion would be based upon the pleadings upon file, and served in the case, and on the record of the case.” The notice stated that the motion would be made on December 12, 1888. The record shows no further proceedings until January 26, 1889, when the judge of the district court issued an order on defendant to show cause on January 29, 1889, why the plaintiff should not be granted leave to file an additional affidavit for attachment in the case. Attached to the order were copies of two affidavits; the first being another affidavit by H. F. Miller, Esq., who made the original affidavit. In this affidavit Mr. Miller states that defendant, by his answer, claims that a certain portion of the debt sued for was not due when the action was brought, and that he had taken testimony tending to prove the same, and that affiant had learned since the service of said answer, that at the time the action was brought the defendant had sold, conveyed, and incumbered his property with intent to cheat and defraud his creditors. The second affidavit was made by Eben D. Jordan, Jr., one of the plaintiffs, dated December 18, 1888, and reaffirms the statement that defendant had fraudulently disposed of his property when the action was commenced, as stated by Mr. Miller.

The order to show cause was heard on March 17, 1889; and