54 Kan. 375 | Kan. | 1894
The opinion of the court was delivered by
After the plaintiff in the court below had levied an attachment upon the personal property of the Haskell County Bank, the Bank of Santa Fe, a judgment creditor of the Haskell County Bank, having levied an execution upon the same property subject to the attachment, filed its motion, with the permission of the district court, to discharge the property from the attachment. This motion was denied, upon the ground that the Bank of Santa Fe was not a party to the action or interested therein or affected thereby. The motion was attempted to be presented again, when the petition was amended by the substitution of S. A. McCollum, as county treasurer, as plaintiff. The record states the parties admitted in open court that the property attached was levied upon subject to the attachment under an execution issued by the clerk of the district court of Finney county to the sheriff of Haskell county upon a judgment rendered in the district court of Finney county in favor of the Bank of Santa Fe against the Haskell County Bank. Upon the facts disclosed, the Bank of Santa Fe was interested in the property attached, and also in discharging it from the attachment wrongfully levied thereon. Under the prior decisions of this court, the Bank of Santa Fe had the legal right to contest the validity of the attachment. (Civil Code, § 532; Long v. Murphy, 27 Kas. 375; Dolan v. Topping, 51 id. 321.) The rulings of the court upon the motion were erroneous. In Boston v. Wright, 3 Kas. 227, Wright was made a party defendant and permit
It appears that the action brought by The State, ex rel., against Haskell County Bank et al., was to recover $12,011.25, upon the breach of the condition of a bond executed by the Haskell County Bank and its sureties, providing that the bank, which had been designated as the official depository of Haskell county, would pay promptly the checks and drafts of the treasurer of that county. The ground for obtaining the writ of attachment was, that the Haskell county bank “had failed to pay the price and value of certain articles and things delivered, which by its contract it was bound to pay upon demand, and to pay over the money deposited by the treasurer of said Haskell county on demand, as provided in said bond.” It appears from the petition that large sums of money had been deposited in the Haskell County Bank by S. A. Me Collum, as county treasurer, and at the commencement of the action of The State, ex rel., against the Haskell County Bank that there was a balance in the bank to the credit of S. A. McCollum, as county treasurer, of $12,011.25, and that the bank and its cashier refused to accept or pay the checks of the county treasurer. It is not alleged in the petition or the affidavit for attachment that there was any money due for any articles or other things sold or delivered by the state to the bank. The action of the state, and the subsequent action of S. A. Me Collum, as county treasurer, was not upon an account for goods and merchandise which the Haskell County Bank had purchased and had failed to pay the price or value, upon delivery. The mere refusal to pay over money deposited by a county treasurer is not a ground for the writ of attachment provided for in the statute. Therefore, upon the record, it appears that there was no ground for the issuance of the attachment, and the motion to discharge the property ought to have been heard and sustained.
It is unnecessary to decide the other questions which are discussed in the briefs. The Bank of Santa Eé is interested
The order of the trial court overruling the motion to discharge the attachment will be reversed, and the cause remanded, with direction to the district court to sustain the motion of the Bank of Santa Fé to discharge the attached property.