4 Kan. 178 | Kan. | 1867
Per Curiam,
On the 4th day of July, 1866, one Lipman Meyer, a non-resident of Kansas, engaged in freighting, was insolvent, and indebted to both plaintiffs and defendant, and to various -other parties, in large sums of money.
His only visible or available property seems to have consisted of a train of oxen and wagons, which, on that day, were near the line dividing the counties of Douglas and Shawnee.
Carney & Stevens and Dreyfoos & Dreyfoos commenced this action against Meyer, and sued out orders of attachment for the property, in the county of Douglas, causing the order of attachment to be directed to the sheriff of Shawnee county as well.
Taylor commenced his action in Shawnee county, and procured an order of attachment also. The sheriff of Shawnee county attached the property of Meyer on the 6th of July, at the suit of Carney & Stevens and Dreyfoos & Dreyfoos, on the order issued to him from the district court of Douglas county ; and on the 7th
The property was appraised and sold as perishable, and the controversy is as to which party has the right to the proceeds in the hands of the sheriff.
Taylor filed, his petition in the district court of Shawnee county, setting up the facts on which he relies; and Carney & Stevens and Dreyfoos & Dreyfoos filed a demurrer to the petition, which demurrer was overruled by the court, thus sustaining Taylor’s claim. To revise this order, Carney & Stevens and Dreyfoos & Dreyfoos bring the case.to this court.
The demurrer admits the truth of all the facts in Taylor’s petition, which are well pleaded; and it is therefore admitted as a fact that at the time suit was commenced in Douglas county against Meyer, said Meyer had neither property in the county nor debts due him, nor was he to be found there himself. But the statute governing the case (§ 59 of the code, Oom/p. L., 133) provides that an action against a non-resident 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.
In strict compliance with this provision, Taylor commenced his action in Shawnee county, where the property was found, and attached July 7th; while Carney and others commenced their action in Douglas, where neither the property nor the defendant was found, or to be found, until, as alleged in the petition demurred to, he was procured to come into the county for the express purpose of being served with process, on the 12th day of July, eight days after the commencement of the suit against him in that county, and five days after the property had been attached in
It seems clear upon principle that where the existance of certain facts is necessary to give the court jurisdiction, such facts must exist at or before the time such jurisdiction was assumed or exercised.
In this case the district court of Douglas county assumed jurisdiction, and exercised it by attaching property in Shawnee county, six days before any of the jurisdictional facts are pretended to have existed. But it is claimed that the jurisdiction was inchoate at the time the order was issued, and became perfect and complete when the defendant, Meyer, was “found” in the county, and duly served.
We cannot see how the coming of Meyer into Douglas county could divest Taylor of the rights he had already acquired under a valid attachment in Shawnee county, whatever might have been the healing powers of Meyer’s advent — being found in Douglas. Had no rights of third parties intervened, we are clear that it ■could not operate to the prejudice of Taylor in the case found.
And these conclusions, which to us seem sufficiently clear upon principle, are fully supported by authority. See cases of Fuller et. al. v. Langford, 31 Ill. Repts., 248; Hindman v. Rushmore, 27 Ill. Repts., 509.
It is charged by counsel for defendant in error, that the procuring of Meyer to come to Douglas county for the purpose of being served with process, was an act of fraud on the part of plaintiffs in error. We do hot think so. On the contrary, it was a legitimate act of diligence, which might have resulted in securing their claim, had not the rights of other parties intervened.