27 Kan. 626 | Kan. | 1882
The opinion of the court was delivered by
This was an action brought by Joshua Clayton and James Clayton, partners as Clayton & Clayton, against E. W. Burton, G. N. Moses and E. R. Moses, partners as Burton, Moses & Bro., G. W. Ashton and G. Landis, to have the question adjudicated and determined as to whether Clayton & Clayton or Burton, Moses & Bro. and G. W. Ash-ton had the prior attachment lien upon certain property attached as and belonging to G. Landis. It is admitted that the attachment of Burton, Moses & Bro. and G. W. Ashton is prior> in time to that of Clayton & Clayton, but Clayton & Clayton claim that the attachment of Burton, Moses & Bro. and G. W. Ashton was illegal, fraudulent and void, and obtained solely for the purpose of defrauding Clayton & Clayton, and other creditors of the said G. Landis. It is admitted that the' petition of Clayton & Clayton in the court below sets forth facts sufficient to constitute a cause of action, and that the answer of the defendant G. W. Ashton is sufficient to put in issue all the facts alleged in the petition. The answer is in fact a general denial. Whether the other defendants, Burton, Moses & Bro. and G.. Landis filed any answer or not, the record does not show. A trial was had before the court without a jury, upon the issues presented by the petition of the plaintiffs Clayton & Clayton and the answer of the defendant G. W. Ashton, upon an agreed statement of facts. This agreed statement of facts reads as follows:
“September 6th, 1878, Burton, Moses & Bro. obtained judgment against G. Landis, in the district court of Barton county, Kansas, on two promissory notes for the sum of one hundred and eighty and dollars and costs. The two notes on which said judgment was rendered were not canceled by the court, but were retained by Burton, Moses & Bro. On or about October 1st, 1878, the defendant G. Landis, desiring to sell certain real estate, for the purpose of removing the lien
Upon the foregoing agreed statement of facts the court below rendered judgment in favor of the plaintiffs, Clayton & Clayton, and against the defendant, G. W. Ashton, giving to the plaintiffs the proceeds of the attached property. The only question now presented is, whether the agreed statement
The two attachments were levied upon the property the samé day, to wit, upon October 9, 1878; but Ashton’s attachment was levied upon the property a short time before the attachment of the plaintiffs was levied upon the same. It is admitted by Ashton that the plaintiffs’ attachment was valid,- but he claims that his own attachment created the prior lien upon the property; while the plaintiffs claim that Ashton’s attachment was wholly illegal and void, and did not create any lien upon the property — and we are inclined to think the plaintiffs are correct.
The claim upon which Ashton’s attachment was issued had no existence in law. The claim was not “just,” nor could any person say that “the plaintiff ought to recover” anything upon it. The claim was upon two promissory' notes; but these notes had long prior to that time been merged in a judgment, and the judgment had been paid and satisfied. The action in which Ashton’s attachment was issued was prosecuted in the name of Burton, Moses & Bro.; but Burton, Moses & Bro. had no claim against Landis or his property. They were not creditors of Landis, and Landis owed them nothing. The claim at the time the action was brought was a mere fiction; and Burton, Moses & Bro. did not bring the action, nor authorize it to be brought. It was brought solely and entirely by Ashton, but in the name of Burton, Moses & Bro. Ashton had a claim, and indeed we suppose he had two claims against Landis; but he did not bring the action upon either of his own claims, but brought it upon the old and original claim of Burton, Moses & Bro., which claim had a long time previous to that time been paid, satisfied and extinguished.
Now such a claim we do not think is sufficient to sustain an attachment, and certainly not as against creditors who have a right to attach the property and who do attach it. We suppose that Landis could waive the wrongful issue of the
We do not think that an attachment issued under such circumstances and levied upon property should be considered as having any validity as against a creditor who, upon the same day, has levied another attachment upon the same property.
The judgment of the court below will be affirmed.