Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1898-10-28
PECULIAR CASE DECIDED.
Supreme Courts Holding on Suits in At
tachment- Dismissal of Main Action
Dissolves the Attachment,

In case No. IA, John w. Schofeld, re-
ceiver, plaintiff in error VS.. American
Valley Company and w. B. Slaughter
defendants in error, error to the dis
trict court of Socorro county Chief
Justice Mills handed down an opinion,
which was concurred in by the other
members of the court, affirming the
judgment of the lower court.
On January 20, 1894, the plaintiff, as
receiver of the Albuquerque National
bank, filed in the district court for So
corro county, declaration in assump-
| sit, and on the 9Th of the following
March filed an affidavit for attachment,
claiming that the defendants owed the
bank of which lie was receiver, a Ger
tain sum of money on three promis-
sorry notes The grounds for the at
tachment, as set out in the affidavit,
We're that the American Valley Conpa-
ny has fraudulently concealed and dis
dosed of its property and effects so as
to defraud, hinder and delay its cred
itors and that the said American Valley
Company is about to remove it's prop
erty and effects out of this territory,
and that the said defendant, the Amer
lean Valley Company is about to fraud
ulently convey and assign, conceal and
dispose of it's property and effects SO as
to hinder delay and defraud it's cred
itors; and that the said defendant w.
b. Slaughter is not resident of and
does not reside within the territory of
New Mexico" On the same day bond
was filed and summons and writ of att
tachment were issued, and We're placed
county for service. Under the writ of
attachment the sheriff levied on the
property of the American Valley Com
pany and took it into his possession.
The defendant company and slaugh-
ter entered separate appearances and
duly pleaded to the suit in assumpsit,
and both traversed the affidavit of at
tachment. On May 80, 1894, on motion,
the court granted a severance and trial
was had on the truth of the affidavit,
and the traverse to it filed by the Amer
lean Valley Company, jury being i'm
paneled. At the conclusion of the evil
dence offered by the plaintiff the de-
fendant moved the court to instruct the
jury to find the issue in it's favor, and
the jury, by the direction of the court,
50 found. To this instruction the plaint-
if duly excepted, and moved the court
to set aside the verdict, which motion
was over-ruled, and judgment dissolv-
ing the attachment and taxing the costs
against Schofield as receiver, was duly
entered.
On January 8, 1898 (nearly four years
after the trial of the issue raised by the
attachment}, the plaintiff gave notice
in the assumasit Gait. on which the at
tachment was based, that he would
mot further prosecute this cause and
moves to dismiss the same" The court
accordingly dismissed the case and or
dered costs to be taxed against the
plaintiff, and on the Goth of the same
month the following order was entered:
Nov come the parties in this cause,
and by their attorneys, and file their
stipulation herein, whereby it is agreed
that the record in this case shall show
the fact that after the trial of the truth
of the attachment affidavit herein, and
before the dismissal of the cause, the
case was compromised and settled by
the payment to the plaintiff of portion
of the money claimed, which was re-
ceived as full payment Of the claim Of
the plaintiff; and that said stipulation
shall be taken as part of the record in
said cause, or that the record of the
said cause may be amended in accord
ance with the said stipulation so as to
show the above mentioned facts" Bill
of exceptions was thereafter settled and
that part of the case which related to
the writ of attachment came before the
supreme court.
The case was peculiar one and was
given careful consideration by the
court. The plaintiff seemed to think
that an appeal should be taken from
judgment dissolving an attachment and
cited authorities in support OF his con-
tention. The court however, arrived
at the conclusion that the plaintiff hav-
ing dismissed the main action that the
attachment went down with the dis
missal; also that the record showed
that the writ of error was not sued out