State v. Burdick (Wyo.). State v. Burdick (Wyo.). State v. Carroll (Mont.). State v. Carson (Wash.). State v. Corach (Or.). State v. Elvin (Kan.). State v. Evans (Mont.). State v. Fletcher (Or.). State v. Foot You (Or.). State v. Forrest (Wash.). State v. Glave (Kan.). Pederson Sears v. .389, 1081 351 State v. Board of Com'rs of Laramie County (Wyo.) 992 125 131 688 428 666 517 1010 .1056 .1079 Semi-Tropic Land & Water Co., Shively 8 V. (Cal.).. 848 State v. Lee (Mont.). 690 Seymour v. City of Spokane (Wash.). 832 State v. Lewelling (Kan.). 425 Seymour v. City of Tacoma (Wash.). .1059 State v. Lucas (Or.). 538 Shain v. Petersen (Cal.). Shain, Petersen v. (Cal.). .1086 State v. Martin (Kan.). 9 Shean, Atchison, T. & S. F. R. Co. v. State v. Mitchell (Kan.). 104 State v. O'Neil (Kan.).. 28T Sheehan, City of Port Townsend V. (Wash.) 427 State v. Pierce (Kan.). 368 Page Swanson, Roderick v. (Wash.). Swartz, Colton Land & Water Co. v. (Cal.) 878 Walsh, Chicago, R. I. & P. R. Co. v. (Colo. Page 496 349 Wallace v. Sisson (Cal.). Swett, Heckman v. (Cal.).. .1099 App.) 684 Swope v. Smith (Okl.).. Sworts, Drake v. (Or.). 504 Walter A. Wood Mowing & Reaping Co. 867 Swyney, Hunt v. (Cal.). mings (Wash.) 507 Watt v. O'Brien (Wash.). 969 Tatum, Randal v. (Cal.). 433 Webb, Wetzel v. (Cal.). .1105 Taylor v. Buckley (Colo. App.) 74 Weber v. Gill (Cal.). 330 Taylor, Petersen v. (Cal.). 436 Weber, City of Stockton v. (Cal.). 332 Taylor, Salazar v. (Colo. Sup.). 369 Webster v. Seattle Trust Co. (Wash.). 970 Taylor, Schram v. (Kan.).. Territory v. City of Guthrie (Okl.). 315 Weinburg v. Somps (Cal.).. 341 380 Weir, Lawrence v. (Colo. App.). 646 704 Welch v. Clatsop County (Or.). 934 .1022 Welch, Board of Education of City of To- 654 THE PACIFIC REPORTER. VOLUME 33. 1. An affidavit for attachment, which sets forth, in the language of the statute, fraudulent intent in disposing of property, may be amended on the trial so as to set forth the facts relied on. 2. An estoppel by a former adjudication, to be available, must be pleaded. 3. The declaration of a trustee of a corporation, who owns two-thirds of its corporate stock, that the corporation started with a clear balance sheet, is admissible in attachment proceedings against the corporation, brought because of its shortly afterwards contracting a fraudulent indebtedness to the trustee, and disposing of its property to him with intent to defraud creditors. 4. A verdict simply "in favor of plaintiff," without stating the amount awarded him, is sufficient, where the complaint claims a named amount, and the answer does not deny the indebtedness, or the amount thereof, but merely denies that the debt is yet due. Appeal from district court, Lewis and Clarke county; William H. Hunt and Horace R. Buck, Judges. Action by Isaac Josephi and others against the Mady Clothing Company. From a judgment for plaintiffs, defendant appeals. Affirmed. The other facts fully appear in the following statement by DE WITT, J.: The plaintiffs brought this action to recover judgment for $1,283.50, on account of goods sold and delivered to defendant, a corporation. There was an unexpired credit upon the account. The plaintiffs brought the action under the following provision of section 183, Code Civil Proc.: 'Actions may be commenced and writs of attachment issued upon any debt for the payment of money or specific property, before the same shall have become due, when it shall appear by the affidavit," etc. The section then goes on to provide what shall appear by the affidavit, in order that the attachment may issue. The complaint pleads the indebtedness and the unexpired credit, and then alleges, in sections 3-5, substantially as follows: That defendant is endeavoring to, and is about to, dispose of all its property subject to execution, for the purpose of defrauding v.33P.NO.1-1 its creditors; that is, defendant, by its officers, has entered into a collusive agreement with Reinhold H. Kleinschmidt and Albert Kleinschmidt, whereby it is pretended that defendant is indebted to said Kleinschmidts in the sum of $13,613.37, upon an alleged promissory note of defendant to said Kleinschmidts, of the date of October 2, 1890; that if said note were made, it was without consideration, nor was said defendant at all indebted to said Kleinschmidts, but the note was made for the purpose of enabling the Kleinschmidts to attach the property of defendant, and to take the same from the reach of the creditors of defendant, and to delay them in the collection of their debts; that in pursuance to such design, and in collusion with defendant, said Kleinschmidts, on October 15, 1890, procured an attachment against defendant, and levied upon all its property. The affidavit upon attachment in the case at bar, in addition to the matter required to be set out in an affidavit upon attachinent for a debt due, contained the following statement: "That the same [that is, the indebtedness] is not yet due, but that defendant is endeavoring to, and is about to, dispose of all its property subject to execution to Reinhold H. Kleinschmidt and Albert Kleinschmidt, for the purpose of defrauding its creditors, and that the payment is not secured by any mortgage, lien, or pledge upon real or personal property. A trial by jury resulted in a verdict for plaintiffs. Judgment was entered for the amount claimed. Defendant's motion for a new trial was denied. From that order and the judgment, defendant now appeals. The alleged errors relied upon are stated as they are discussed in the opinion below. Cullen, Sanders & Shelton and Henry C. Smith, for appellant. H. G. McIntire, McConnell, Clayberg & Gunn, and F. N. & S. H. McIntire, for respondents. DE WITT, J., (after stating the facts.) Upon the trial of the case the defendant objected to the evidence in reference to the alleged fraudulent disposition of the property, upon the ground that the affidavit setting it forth was defective. The affidavit setting forth the fraudulent intent is in the language of the statute. The defend. ant's objection was that the affidavit states no facts within the statutory requirements. Thereupon the plaintiffs asked leave to amend their affidavit, which leave was granted by the court, and they then and there incorporated into the affidavit five paragraphs of the complaint, including paragraphs 3, 4, and 5, mentioned in the statement above, which paragraphs were a full setting forth of the acts which plaintiffs claimed showed the fraudulent intent of the defendant to dispose of its property. It is not contended by appellant that the affidavit as amended was insufficient, but it is now urged in this court that the original affidavit was jurisdictional, and that it was so defective that it was no affidavit, and the court never had jurisdiction of the case. Respondents contend that, even if the orig. nal affidavit were not sufficient, it was not error to allow the amendment. This case is not like those cases wherein there was no affidavit at all. There was an affidavit here, which set out the facts in the language of the statute. The complaint is that they were not sufficiently stated. Passing the question of whether the affidavit was originally sufficient, we feel satisfied that the tendency of the decisions of this court is that such an affidavit may be amended. Pierse v. Miles, 5 Mont. 549, 6 Pac. Rep. 347; Langstaff v. Miles, 5 Mont. 554, 6 Pac. Rep. 36; Magee v. Fogerty, 6 Mont. 237, 11 Pac. Rep. 668. In the last case, Chief Justice Wade, in the opinion, said: "The procuring of an attachment, and the steps necessary therefor, is a proceeding within the spirit and meaning of the one hundred and fourteenth section [chapter VIII., Code Civil Proc.] of the Code of Civil Procedure; and if such proceeding is defective, the same may be amended, in the furtherance of justice, like any other proceeding under that section." As to the estoppel suggested by appellant by reason of the judgment in the case of Kleinschmidt & Brother v. Mady Clothing Company, I concur in the result reached in the other opinion filed in this case. Another error claimed is as follows: A witness, Gaines, was upon the stand. He says that in 1890 he was the agent of the commercial reporting association of R. G. Dun & Co. He was asked this question: "Tell us what your conversation was with Mr. Kleinschmidt, in May, 1890, in reference to the Mady Clothing Company?" | The defendant objected, on the ground that Kleinschmidt was not a party to the action, and the declarations made by him are not material to bind any one connected with the parties, or the parties them. selves. The objection was overruled, and the witness testified that Kleinschmidt had told him, about May 3, 1890, that the capital stock of defendant was $15,000; that he held $10,000, and Mady $5,000; and that the company had started with a clean balance sheet. The company was incorporated May 1, 1890. It appears that Kleinschmidt was a trustee of defendant, and a stockholder to the extent of twothirds of the stock. A contention of the action was that defendant was disposing of its goods with the intent to defraud its creditors, and disposing of them to this same Abert Kleinschmidt and another. It was being contended that about the commencement of the action there was a large alleged indebtedness from the defendant to said Albert Kleinschmidt and another. The plaintiffs were claiming that this large indebtedness was a fraudulent one, and that defendant was disposing of its goods, or allowing its goods to be taken by said Kleinschmidts, on account of said alleged fraudulent indebtedness. Now, under this condition of affairs, a large fraudulent indebtedness being claimed to exist in October, we are of opinion that it was not error to allow the witness to testify that Albert Kleinschmidt had told him on May 3d that the Mady Clothing Company had started with a clean balance sheet on May 1st, when the plaintiffs were claiming and undertaking to prove that the company had a decidedly unclean balauce sheet the October following. There is one more matter presented by appellant. The verdict of the jury was as follows: "We, the jury in the above-entitled case, do hereby find in favor of plaintiffs." The appellant objects that this verdict does not comply with the statute, (section 276, Code Civil Proc.,) in that it does not state the amount awarded plaintiffs. But our statute provides, in section 271, Id., that "if the verdict be informal or insufficient in not covering the whole issue or issues submitted, or in any particular, the verdict may be corrected by the jury, under the advice of the court, or the jury may be again sent out." Under this provision the verdict could have been made more formal if it were necessary; but appellant, at the time of its rendition, made no application to that effect, nor did he make any objection to the verdict on motion for new trial. Douglass v. Kraft, 9 Cal. 562. But we are of opinion that, as a matter of fact, the verdict is not objectionable. There was no issue in the pleadings as to the amount due plaintiffs. The complaint sets up the claim for $1,283.50. and the answer does not deny the indebtedness, nor the amount thereof. The only denial was to the effect that the amount was not yet due; that is, that the allegations of fraud by which it was sought to show that the debt should be considered as due were not true. Therefore, as far as the amount was concerned, it was admitted by the pleadings. Hutchinson v. Superior Court, 61 Cal. 119. Therefore, when the jury found their verdict simply to the effect that it was for plaintiffs, they found, in effect, for the plaintiffs on the issue in controversy; that is, the issue of fraud, which made the debt then due. We are of opinion that this is just such a form of general verdict as was suitable to the issues. Judgment was thereupon entered for the amount admitted to be due, namely, $1,283.50. The points above discussed are those presented in the briefs and arguments. None of them, we are of opinion, should be sustained. The judgment is therefore affirmed. PEMBERTON, C. J., and HARWOOD, J., (concurring.) The principal assignment |