Show Attachment on Copper Company Reinstated i I Re-instated i i The Northwestern Wheel and I I Foundry company appellant vs the i Salt Lake City Coppff Manufacturing i company opinion of the lower court I delivered by Judge I reversed opinion Smith and concurred In by Judges j Bartch and King I I The action was brought to recover I money due upon a contract A writ I I of attachment was issued and the sneriff levied upon one Corless engine f one Howe scale on the premises but I d not et up and twentyfour ore cars y A motion t fi dissolve the attachment on the ground that the property attached at-tached was not personal property but belonged to the realty was sustained as to the engine and the scale and I overruled as to the ore cars by Judge Merritt The opinion stated as follows There was no objection to the writ of attachment or the bond and affidavit upon which it was issued The whole rontroorsy was that the sheriff had seized as personal property certain machinery which the defendant claimed was real estate and the court I below adopting the defendants view I I I directed that the levy be discharged i Ve do not deem it necessary or 4 proper in this case to give our opinion I as to whether the property so situated had become part of the real estate or I not because such a question cannot I properly be determined on motion on was done in this case I Ue know of no authority for the I court or judge to direct the sherifi how t > make his levy or what property pro-perty he should levy upon We are clearly of opinion that questions of the character raised by 1 the motion can only be tried in an action ac-tion duly instituted where the parties by appropriats pleadings may tender issues of facts upon which a trial may l o hade had-e think the order discharging the levy rf the attachment should be and Is reversed and set aside and the I f ause Is remanded with directions to tno court below to reinstate the attachment at-tachment the appellant to recover the costs of this appeal J w Smiths Demurrer Sustained Judge King delivered the opinion in the case of the United States appellant appel-lant vs John W Smith affirming the judgment of the lower court Chief Justice ilerritt and Associate Justice Smith concurred in the opinion John W Smith was indicted by the grand jury for taking from the post oflicp a letter intended for one James W Smith addressed to J W Smith Salt Lake city Utah and opening I and wilfully unlawfully fraudulently and feloniously embezzling and concerting I con-certing to his own use said letter and a certain draft for 5450 contained in I itThe < The defendant demurred to the in I dictment alleging that there was no J allegation of fraud in taking the letter I let-ter and if fraud came in afterwards by the defendant using and appropriating appro-priating the draft such was not an offense against the United States though it would be against the state The court below sustained the demurrer de-murrer and their honors now affirmed that ruling holding that it is lear that the felonious intent at the time the letter was taken from the post office is an indespensible ingredient of tbs offiense that being so the In dictmat must allege the taking to have been felonious or it is defective |