Cain v. Perfect, No. 18,079

No. 18,079 | Kan. | Apr 12, 1913

The opinion of the court was weávered by

Burch, J.:

The plaintiff sued the defendant for damages in the sum of $5000, resulting from a libel of the plaintiff published by the defendant in the states of Iowa and Oregon. Real estate belonging to the defendant situated within the jurisdiction of the court was attached. The ground for the attachment stated in the affidavit was that the defendant is a nonresident. Summons having been returned not found, service was made by publication. The defendant appeared specially and moved for a dismissal on the ground that the court was without jurisdiction. The motion was sustained and the plaintiff appeals.

If the attachment was valid the judgment dismissing the action was wrong.

The action being of a transitory nature it was commenced in the proper county under section 53 of the civil code, which reads as follows:

“An action, other than one of those mentioned in the first three sections of this article, against a nonresident of this state or a foreign corporation, may be brought in any county in which there may be property of, or debts owing to, said defendant, or where said defendant may be found; but if said defendant be a foreign insurance company the action may be brought in any county where the cause or some part thereof arose.” (Gen. Stat. 1909, § 5646.)

The first three sections of the article containing this section relate to local actions.

The. affidavit complied in all respects with section 191 of the civil code, which reads as follows:

“An order of attachment shall be issued by the clerk of the court in which the action is brought in any case mentioned in the preceding section when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing:

“First, the nature of the plaintiff’s claim.

“Second, that it is just.

“Third, the amount which the affiant believes the plaintiff ought to recover.

“Fourth, the existence of some one of the grounds for an attachment enumerated in the preceding section.” (Gen. Stat. 1909, § 5784.)

• Previous to 1911 the preceding section (Gen. Stat. 1909, § 5783) read, so far as is now material, as follows:

“The plaintiff in a civil action for the recovery of money or in a suit for alimony may, at or after the commencement thereof, have an attachment againsb the property of the defendant, and upon one or more of the grounds herein stated:

“First, when the defendant or one of several defendants is a foreign corporation, or a nonresident of this state; but no order of attachment shall be issued on the ground or grounds in this clause stated for any claim other than a debt or demand arising upon contract, judgment or decree, unless the cause of action arose wholly within the limits of this state, which fact must be established on the trial. . . .

“T<enth, where the damages for which the action is brought are for injuries arising from the commission of some felony or misdemeanor, or the seduction of any female.”

■ At the session of 1911 the legislature amended this section by an act which reads as follows:

“An Act to amend section 190, chapter 95 of the General Statutes of 1909, and repealing said section 190.

“Be it enacted by the Legislature of the State of Kansas:

“Section 1. That section 190 of chapter 95 of the General Statutes of 1901 [1909] be amended to read as follows: Grounds for attachment. Sec. 190. The plaintiff in a civil action for the recovery of money or in a suit for alimony may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon one or more of the grounds herein stated: (1) When the defendant or one of several defendants is a foreign corporation, or a nonresident of this state; . . . (10) where the damages for which the action is brought are for injuries arising from the commission of some felony or misdemeanor, or the seduction of any female; . . .

“Sec. 2. That section 190 of chapter 95 of the General Statutes of 1909, is hereby repealed.’’ (Laws 1911, ch. 231.)

It is claimed by the defendant that the act of 1911 is nugatory because section 1 purports to amend section 190 of chapter 95 of the General Statutes of 1901. when there is no such section. The title of the act, the body of section 1 and section 2 show, however, that a clerical error was made in enrolling the bill and that the General Statutes of 1909 were intended.

The defendant argues that, conceding the act of 1911 to be effective, no attachment can be had, in actions ex delicto unless clearly authorized by statute, and that the inclusion of the torts specified in subdivision 10 indicates a purpose to exclude all others.

Section 190, both before and after the amendment, is divisible into two parts; first, a specification of the classes of actions in which an attachment may be had, and second, a specification of the grounds for an attachment. An attachment may be had in a civil action for the recovery of money, or in a suit for alimony, which may or may not be for a money judgment. In such actions an attachment may be had on any one or more of the eleven grounds prescribed. The fact that the damages sued for arose from the commission of a felony or misdemeanor, or the seduction of a female, furnishes a ground for attachment the same as non-residence, or absconding to defraud creditors, or the removal, conversion or fraudulent disposition of property.

Previous to the amendment of 1911 the only limitation upon the right to an attachment in actions for the recovery of money, so far as the nature of the cause of action was concerned, was that contained in the first •subdivision of the section. If the ground for attachment was that the defendant was a nonresident or a foreign corporation it was necessary that the cause of action should rest upon contract, judgment or decree, unless it arose wholly within the limits of this state. The sole purpose of the amendment, of 1911 was to strike out this limitation, and the result is that the plaintiff in a civil action for the recovery of money, whether the cause of action be founded upon contract or tort, and whether it arose in this state or not, may have an attachment on the ground that the defendant is a nonresident.

It is argued further by the defendant that an attachment can not be had unless the damages are capable of definite estimation so that the affidavit may state them with approximate certainty. The legislature not having annexed this qualification to the statute the court can not do so. It is sufficient if the action be one for the recovery of money, or for alimony, and the affidavit state the nature of the plaintiff’s claim, that it is just, and the amount the affiant believes the plaintiff ought to recover. (Civ. Code, §§ 190, 191.)

The district court did not state upon the record the ground of its ruling. The matters which have been considered are all that are urged in its support. • They are insufficient for the purpose, and no other being apparent the judgment is reversed and the cause is remanded with direction to proceed according to law.