Arthur v. Hale

6 Kan. 161 | Kan. | 1870

The opinion of the court was delivered by

Safford, J.:

The order complained of in this case was made by the judge of the district court in a proceeding in aid of an execution, which was prosecuted under and by virtue of the provisions of the code of 1862, Comp. L., ch. 26, §476, ei seq.

1. Error -will not tatpmnsn>ee’ shown. 3. garnishee— . límade-l may 3._.buterror cuSou!d exe" Several objections are urged as to the validity of the said order, and the regularity of the proceedings by which it was obtained; but owing to the condition . . ° of the record which is brought to this court, they cannot, for the most part at least, be considered. A portion of the evidence, from which the judge below found the facts upon which the order was based, is preserved in the record, and is presented in the form of a statement in regard to the matter of the inquiry, signed by the attorneys of the party against.whom the proceeding was directed as garnishee, and sworn to by such party. But what other and further evidence was before the said judge, and what ■ facts other than those set out in the statement referred to, if such other facts were necessary to sustain the finding made, were by such other evidence proven to his satisfaction, we are not advised by the record. It follows then, that, inasmuch as it does not appear upon what the judge below acted, this court will not undertake to say that the facts established by the evidence were not sufficient to sustain such an order as was authorized by the code in like cases; §479, ch. 26, Comp. L. 1862. As a consequence therefore, the finding of the judge, and his order requiring the. plain tiff in error to pay the money in his hands as garnishee, into the hands of the clerk of the district court, will not be disturbed. But that part of the order awarding an execution against the garnishee to collect the money, in case of default in the payment thereof to: the clerk, we think was wrong, and for the reason that it was not authorized by the sections of the statuté relating to such proceedings as were had in this case, or any other provision of the code which has been brought to our notice.

It is contended that the proceedings before the judge were irregular, and not in conformity to law. This may be true to some extent; but we think that any informality was waived by the voluntary appearance and answer of the garnishee, and cannot be taken advantage of here.

The order entered below will be modified in accordance with the views above expressed, and the costs in this court divided equally between the parties.

All the Justices concurring.