Board Com'rs Jefferson Co. v. Swain

5 Kan. 376 | Kan. | 1870

By the Court,

Safford, J.

A single question is presented by the record in this case, which requires the consideration of this court, and its decision involves a construction of one of the provisions of our statute relating to attachments. This question may be stated thus: "Where one of two contractors is a non-resident of the state, and the other a resident, can an attachment be sued out and maintained against such non-resident ?

At first sight it would seem to be a matter of no little difficulty, to arrive at a proper solution of this inquiry; but when we examine it, in the light of the provisions of our statutes respecting and governing other actions, the task appears very much easier.

Joint Obligóme Act-ion against. It will be remembered that, under our practiCe, suits may be prosecuted against any one or more of those who may be liable on joint obligations and joint assumptions of co-partners, or others, at the option of the party entitled to bring such suit, [Chap. 21, 11 and 4 Gen. Stat., 1868; see also § 39, Code 1868,] such being the fact, and the liabilities and obligations of the parties in the case at bar, in relation to the subject matter thereof, being such as clearly bi’ing it within the provisions of that portion of the statutes referred to, it follows that the plaintiff in this case had a full and perfect right to bring this action against one or both of the parties who were liable on the contract, upon which it was based, and this, too, without regarding in any manner the liability of the one, in case the other was alone prosecuted.

Attachments Against. This point as to the right of the party having been settled and determined, we may proceed to say further, that if the plaintiff in this case chose to prosecute only one of those who might have been made defendants, it would seem also to follow, as a matter of’ course, or rather as a matter of undoubted right, that such plaintiff was entitled to the benefit of any and all provisions of the statutes, which are applicable to and are enacted for the purpose of eñabling a party to successfully prosecute similar cases. If, therefore, the party against whom the plaintiff below saw fit to endeavor to enforce the alleged claim or right to rogover, was a nonresident of the State of Kansas, we think, in view of what has been stated, that it is bnt fair and just to hold that such non-resident defendant might have been and was properly proceeded against, under tbe provisions of our attachment law, as furnishing tbe direct and, perhaps, tbe only effective way in which tbe rights of tbe plaintiff could be so enforced, as against him. We bave come to this conclusion after a careful consideration of tbe law bearing upon tbe case; and although much has been said, and much of ingenious argument has been advanced, by tbe counsel upon either side, as to tbe points they bave regarded as tending to solve tbe question at issue, it is, perhaps, unnecessary for us to pursue this discussion further, than to say tbat we tbink tbat tbe provisions of our attachment law bave introduced no changes in tbe rules governing tbe parties’ pleadings and proceedings, which obtain in other actions; and, especially, as to the right of a plaintiff to proceed against one or more of tbe parties who may be liable on such causes of action as come within tbe provisions of section four, chapter twenty-one, statutes 1868, and tbe other sections referred to. It may be said, tbat tbe plaintiff in this cause did not, in tbe first instance, avail himself of tbe right which existed under tbe law as stated, to proceed against only one of tbe parties who were liable on tbe contract set up in tbe petition, inasmuch as tbe petition purports to bave been filed as against both of such parties.

But we tbink tbat this objection is sufficiently answered, by tbe showing in the' record tbat no service of summons was ever bad upon tbe defendant, who resided in tbe state, nor does such defendant seem to bave made any appearance whatever in tbe case. He was not in court in any sense, nor do we think tbat tbe plaintiff was bound, in any manner, to proceed as to him.

Several other questions have been raised as to the regularity of the attachment proceedings, hut they do not seem to have beenspecially relied upon by the counsel, nor do they seem to afford any considerable- force . or ground,of objection as, against the validity of such proceedings ; and, besides, it may be said in relation to some of, the more prominent, that they have been waived .in the record..

The order; of the district court discharging the attachment in this case is reversed.

All the justices concurring.