Bertz

This appeal is from an order refusing to dissolve an attachment. In the notice of the motion to dissolve it was stated, “said motion will be made on the ground that plaintiff, Bertz, has united with others to declare Clarke insolvent, and that said Bertz cannot occupy the position of attaching creditor and petitioner in insolvency at the same time in regard to the debt and same debtor. The motion will be made on the affidavit of Alfred Clarke served and filed herewith.”

No other document or evidence was produced at the hearing, except the affidavit referred to. It states that Bertz brought his action September 26, 1891, and on said day caused an attachment to be issued against the the property of defendant Alfred Clarke.

That October 2, 1891, a petition was filed by C. W. Mott and others to obtain an adjudication of insolvency against Alfred Clarke, and Clarke was ordered to appear and answer said petition.

That thereby the attachment levied was dissolved by operation of law.

This being the only showing the court could not do otherwise than to refuse to dissolve the attachment. It *674 does not appear that the writ of attachment has ever been levied, or what Bertz did in the…