been, and is making his home; that he is the owner of personal property, consisting, among other things, of the automobile levied upon in this case, and a set of carpenter tools, which personal property he claims to be worth $1,000. It appears, further, that Isaac Ogland has been living at his present place of residence at Crosby for many years. Both defendants denied that Isaac Ogland made the statement attributed to him by plaintiff and his wife. Both, also, denied that they had committed, were about to commit, or ever had the slightest intention of committing, any of the several acts charged in the affidavit for attachment.
In passing on a motion to discharge an attachment, the trial court exercises judicial powers. Due weight will be given to its determination. But where that determination relates to the truth or falsity of the charges set forth in the affidavit for attachment, and involves a consideration of evidence bearing upon such question, there must be some basis in the evidence for the conclusion reached by the trial court. This court has ruled:
"In motions for dissolution of an attachment, the facts stated in the original affidavit being denied, the burden is on plaintiff to support the allegations thus made; failing so to do this, the attachment should be dissolved." Weil et al. v. Quam, 21 N. D. 344, 131 N. W. 244. See, also, 6 C. J. 451; 2 R. C. L. 878. In our opinion the plaintiff wholly failed to show the existence of any of the grounds specified in the affidavit for attachment; and the trial court should have ordered the attachment to be dissolved.
The order appealed from is reversed, with costs to the appellants.
Grace, C. J., and Christianson, Birdzell, and Bronson, JJ., concur.
Robinson, J. (dissenting). This is an appeal from an order denying a motion to vacate an attachment. The plaintiff sues to recover $500 damages on the ground that by fast and reckless driving defendants ran an automobile against the plaintiff, doing him severe injury. On the usual statutory affidavit the plaintiff obtained a warrant of attachment and levied on the offending automobile, which was appraised at $300. On counter affidavits defendants moved to dissolve the attachment, and on the hearing of the motion the plaintiff and his wife were sworn and testified and each testified that defendants called on them, and on leaving defendant Isaac Oglund, the owner of the automobile, said:
