4 Kan. App. 531 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
In 1893 Julius Wulfsohn was engaged in the mercantile business in the town of Ingalls, Gray county, Kansas, and was also a partner in a mercantile house in Dodge City, Ford county, under the firm name of Wulfsohn & Swartzman ; he seemed to be greatly embarrassed by individual indebtedness, and the firm of Wulfsohn & Swartzman were also largely indebted to various persons. On the 9th day of October, 1893, Julius Wulfsohn gave a certain chattel mortgage on his goods, wares and merchandise that were then in the store at Dodge City, Ford county, and also at the same time a chattel mortgage was executed by Wulfsohn & Swartzman upon the stock of merchandise then oymed by them in Dodge City ; the one mortgage was executed to secure about $4,000 of the individual indebtedness of Wulfsohn, and the other mortgage was executed to secure about $3,500 of the indebtedness of the firm of Wulfsohn & Swartzman.
On the 10th day of October, 1893, Barton Brothers began an action in the district court of Gray county, Kansas, against Julius Wuhlfsohn, and obtained personal service of summons upon him on the same day in Gray county, and, on filing their petition, they filed the necessary affidavit and undertaking for an attachment, and caused an order of attachment to issue to the sheriff of Gray county, and also an order of attachment to issue to the sheriff of Ford county; The goods of Wulfsohn were seized by the sheriffs of
On the 10th day of October, 1893, Hanauer, Kolm & Oo. filed their petition in the office of the clerk of the district court of Ford county, and caused a summons to issue therein, which summons was returned by the sheriff of said county not served — Julius Wulfsohn not found in Ford county — and, on the same day, upon the filing of an affidavit and undertaking in attachment, they caused an order of attachment to issue directed to the sheriff of Ford county, Kansas, and upon the same day the sheriff seized the interest
On May 1, 1894, Barton Brothers and the Standard Shoe Company each separately appeared in the district court of Ford county and intervened, and filed their separate motions to set aside and dissolve the attachments and discharge the attached property from any lien whatever under the attachment proceedings attempted in Ford county, and set up that they have, by their attachment proceedings in the district court of Gray county, acquired valid liens upon the attached property, and that each has a subsisting lien thereon,
There were four different cases pending in the district court of Ford county at the same time, in which the parties were all claiming an interest in the property under attachment proceedings. A receiver was ‘appointed, who sold the property under order of the court, and the court undertook to determine the priorities of the several attachment liens, and ordered the proceeds to be distributed according to the judgments therein rendered. It is claimed that the court erred in the order determining the priority of liens, by finding in favor of the several plaintiffs in cases commenced in the district court of Ford county. It is shown by the record that Julius Wulfsohn, at the time of the commencement of the several suits in the district court of Ford county and the' issuing of the order of attachment therein, was a resident of Gray county, in the state of Kansas, and that he'was not in the county of Ford, and could not have been, and was not served with summons in said county, and that he did not voluntarily enter his appearance in any of the suits in said county.
The plaintiffs in error have brought all the parties before this court that were parties to the litigation in the district court. Some of these were parties in one suit and some were parties in other suits, and they are all before this court in the proper cases. We think the parties that may be affected by review of these cases are all before this court, and their rights and interests will be fully protected by the judgment and consideration thereof. . To give this court jurisdiction it is only necessary to bring all parties that Were parties to the suit below. Persons who were not parties in the district court are not affected by its judgments, and are not necessary parties to the pro-, ceedings in error for a reversal of such judgments. The plaintiffs in error have made the persons who were parties to the suit in the distinct court parties to the proceedings for a review in this court in the same suit that they were parties to below; or, in other words, those that were parties to that branch of the case that is affected by these proceedings.
This brings us to a consideration of the material questions alleged as error, for which a reversal of the judgment is sought. The plaintiffs in error, after having commenced their action in the district court of- Gray county, and obtained personal service of summons on defendant Wulfsohn in that suit, procured valid attachments on the property of Julius Wulfsohn. and prosecuted their actions to final judgment, and the attachments were sustained by the court. They
Section 45a of the code (Gen. Stat. 1889, ¶4123) provides:
“Any person claiming property, money, effects or credits attached, may interplead in the cause, verifying the same by affidavit made by himself, agent, or attorney, and issues may be made upon such inter-pleader, and shall be tried as like issues between plaintiff and defendant, and without t any unnecessary delay.”
The district court entirely disregarded the motion of the plaintiffs in error and rendered judgment against Wulfsohn by default, and sustained the attachment and made it a paramount lien to that of the plaintiffs in error. Upon the facts disclosed, Barton Brothers and the Standard Shoe Company were interested in the property attached, and also in having.it discharged from the attachment, which the record shows was wrongfully levied thereon. (Bank of Santa Fe v. Haskell Co. Bank, 54 Kan. 378 ; Dolan v. Topping, 51 id. 321.)
The plaintiffs in error, having appeared and intervened in the actions and set up fully such facts as entitled them to a dissolution of the attachments and a discharge of the property, and such facts being admitted, they were entitled to a dissolution of the attachments and a discharge of the property from any pretended lien of the defendants in error. They were entitled to raise the question of jurisdiction in 1*.iid court, and it was the duty of the court first to pass upon the question of its jurisdiction to further enter-.
Chapter 80 of the General Statutes of 1889, commonly known as the code of ciyil procedure, is intended to regulate the procedure in all ciyil actions, and defines the manner of bringing actions, the rules governing the procedure therein, the time in which an action may be commenced, who are necessary parties ; also, when an action is deemed to be commenced, and the county in which actions may be brought.
"Actions for the following causes must be brought in the county in which the subject of the action is situated, except as provided in section 47 : First, For the recovery of real property or an estate therein, or for the determination in any form of any such right or interest. Second, For the partition of real property. Third, For the sale of real property under mortgage, lien, or other incumbrance or charge. (Gen. Stat. ¶ 4125.)
Actions for the following causes must be brought in the county where the cause, or some part thereof, arose :
First, an action for the recovery of a fine, forfeiture or penalty imposed by statute, except that when it is imposed for an offense committed on a river or other stream of water, or road, which is the boundary of two or more counties, the action may be brought in any county bordering on such river, watercourse, or road, and opposite to the place where the offense was committed. Second, an action against a public officer for an act done by him in virtue or under color of his office or a neglect of his official duties. Third, actions on an official bond or undertaking of a public officer. An action other than those mentioned in 'sections 46, 47 and 48 of article 5, against a nonresident
"Where the action is not of a local character, against a resident of the state, it must be brought in the county where he resides or. where he may be summoned. Actions are either in personam or in rem. In all actions in personam there are adversary parties, and the court cannot entertain any such action until it has jurisdiction over the subject-matter and of the parties; but in proceedings in rem the jurisdiction is over the property alone, and it must be within the jurisdiction of the court. Where a party is a
There are three methods by which the want of jurisdiction may be taken advantage of : (1) By motion to dismiss ; (2) by demurrer ; (3) by plea. The motion to dismiss may be made at any time, where the court has no jurisdiction of the subject-matter or of the party, and may be made by any person who will be injuriously affected by such proceedings. The district court of Ford county did not acquire jurisdiction over the person of Julius Wulfsohn by the commencement of suits in Ford county, and no suit could legally be instituted agains him in said county in his absence therefrom ; and an order of attachment in a civil action for the recovery of money may be issued at or after the commencement thereof. It therefore follows that the clerk of the district court of said county could not
The judgment of the district court is reversed, and the case remanded for such further proceedings as are indicated in this opinion.