41 Kan. 173 | Kan. | 1889
Lead Opinion
The opinion of the court was delivered by
The facts in this case are substantially as follows: The Exchange Bank of Lenora commenced an action against A. C. Lappin before a justice of the peace, and obtained an order of attachment, which was levied upon the property in controversy by the constable, John Becker; before the trial a motion was filed by the defendant to discharge the attachment, upon the ground that the facts alleged in the affidavit for the attachment were untrue; upon the hearing of the motion it was overruled, the justice deciding that the attachment was valid. Subsequently the action was tried before the justice, and judgment rendered in favor of the defendant and against the plaintiff, upon the ground that it was prematurely brought; the judgment also directed that the attached property be returned. The Exchange Bank gave notice that it would appeal from the judgment of the justice to the district court, and within the ten days allowed by law perfected its appeal, filing an ordinary appeal bond, reciting the judgment, etc.
After the justice of the peace had rendered judgment against the plaintiff, the constable continued to hold possession of the property under the attachment proceedings. After the attachment had been levied by the constable, A. C. Lappin executed a chattel mortgage thereon to W. M. Steele and J. W. Walker, partners as Steele & Walker, which mortgage was duly filed in the office of the register of deeds. After judgment was rendered by the justice-of the peace, Messrs. Steele & Walker demanded the property of the constable, and, their demand not being complied with, commenced an action against the constable to recover possession of the property. Upon the trial, the district court decided that the constable had no right to the possession of the property, for the reason that the Exchange Bank failed to recover judgment upon its claim before the justice of the peace.
The sole question for decision in this case is, did the appeal of the Exchange Bank from the judgment of the justice of the peace transfer or carry the attachment proceedings to the district court, so as to authorize the constable to retain the possession of the attached property pending the appeal ? Under the decisions of this court, already pronounced, the question must be answered in the negative.
In Butcher v. Taylor, 18 Kas. 558, the justice, before the trial, discharged the attachment; afterward a trial was had upon the merits of the action, which resulted in favor of the plaintiff; the plaintiff then took an appeal to the district court from the decision of the justice on the attachment proceedings, but not from the judgment of the justice on the merits of the action; and it was held that no appeal would lie from the order discharging the attachment.
In Gates v. Sanders, 13 Kas. 411, the order of attachment was discharged by the justice, but a judgment was rendered in favor of the plaintiffs for the amount of their claim. From this judgment they appealed, and filed an ordinary appeal bond,
“ The attachment is but an ancillary proceeding, and may stand or fall without affecting the progress of the suit. The judgment is rendered for or against the plaintiff and upon the sufficiency of his cause of action, without reference to the disposition of the attachment.”
In Railroad Co. v. Casey, 14 Kas. 504, an attachment was issued and judgment rendered in favor of the plaintiff against the defendant. The judgment also ordered that the attached property be sold to satisfy the same. The defendant appealed to the district court, presumably filing an ordinary appeal bond. The court in that case held that as the defendant, who appealed, gave ample security for the prosecution of his appeal and' for the payment of the judgment, the attachment was thereby discharged. Mr. Justice'Valentine, delivering the opinion in that case, said, among other things:
' Roía attacked piopeity. “And as no provision is made by law for the officer who holds the attached property at the time the appeal is taken to turn the property over to some officer of the district court, it would hardly seem that it was intended that the district court should take charge of the attached property. And it can hardly be supposed that after all the proceedings of the justice’s court are taken by appeal to the district 00111.^ that any officer of the justice’s court will continue to have possession and control of the attached property.”
In Brown v. Tuppeny, 24 Kas. 29, Brown was summoned as a garnishee in an action pending before a justice of the peace, wherein Tuppeny was plaintiff and Hill defendant. Brown answered as garnishee, admitting the possession of a draft of $ 100 belonging to Hill, which, when paid, would be owing by him to Hill. Upon the trial between Tuppeny and Hill, judgment was rendered in favor of Hill; and there
Section 45, chapter 81, Comp. Laws of 1885, relating to civil procedure before justices, provides, among other things, that if “judgment be rendered for the defendant in the attachment, the garnishee shall be discharged and recover costs.”
In Roll v. Murray, 35 Kas. 171, the action was commenced before a justice of the peace, and an order of attachment obtained; subsequently, upon the motion of the defendant, the attachment was discharged; afterward a judgment was rendered in favor of the plaintiff and against the defendant; within the ten days the plaintiff filed an appeal bond, attempting to take an appeal both from the order of the justice discharging the attachment, and also from the judgment of the justice upon the merits; the appeal bond was sufficient for both these purposes, if an appeal from an order of the justice of the peace discharging an attachment was allowable. This court held that the appeal did not give to the district court power to review and retry the attachment proceedings instituted before the justice of the peace. Mr. Justice Valentine, in delivering the opinion said, among other things:
“There is no provision in the statutes for taking an appeal from the order of a justice of the peace in any provisional remedy or in any ancillary proceeding, and no provision anywhere for retrying in the district court upon an appeal from a justice of the peace, any question that pertains only to some provisional remedy, or to some ancillary proceeding. The appeal is from a final judgment only, and from a judgment on the merits only, and the trial afterward to be had on the appeal is only upon the merits. ... In our opinion attachment proceedings cannot be taken to the district court at all on appeal.”
In view of the decisions in the foregoing cases, it is unnecessary to refer to the authorities from other states to which we are cited. If the construction given to the statute works
The judgment of the district court will be affirmed.
Concurrence Opinion
I cannot concur in the decision in this case. In my opinion whenever a plaintiff appeals from the judgment of a justice of the peace to the district court, everything pending in the case at the time of the rendering of the judgment appealed from is taken to the district court. Certainly no statute can be found to the contrary. It is true that in all cases where a judgment is rendered in favor of the defendant, either in a justice’s court or in the district court, all attachment and garnishment proceedings then pending in the case will, by-reason of the judgment and it alone, be discharged. (Justices Code, §§45, 46; Civil Code, §§220, 221.) In this respect the rule of law in the two courts is precisely the same. But this discharge of the attachment and garnishment proceedings is only provisional or conditional, depending for its finality wholly and entirely upon whether the judgment itself shall be permitted to stand as a finality, or shall subsequently be set aside or vacated, as upon an order in the same court granting a new trial, or by a judgment of reversal rendered in some higher court upon a petition in error, or by a judgment rendered in some higher court upon an appeal. The aforesaid sections of the justice’s act and of the civil code apply so as to discharge the attachment and garnishment proceedings pending in the case only where the judgment of the court is rendered wholly in favor of the defendant and wholly against the plaintiff, and do not apply where the judgment is rendered in favor of the plaintiff, even if rendered only for the smallest fraction of his claim, and yet in either of these cases it would be the plaintiff, and not the defendant, who would want to appeal, or to carry his ease on petition in error to a higher court. It is also true that an order of a justice of the peace discharging an attachment or garnishment proceeding prior to the rendering of the judgment on the merits of the case cannot alone be