2 Kan. App. 525 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
Charles P. Kellogg & Co. commenced this action January 20, 1892, in the district court of •Dickinson county, against Edward E. Hazlett, on a debt not due, and had an order of attachment issued, under section 230 of the civil code. At the same time an affidavit was made and filed for a garnishee summons, on the ground that the defendant had not
Can the plaintiff, in an action commenced on a debt not due, avail himself of the provisions of the statutes of 1889 relating to garnishment ? The answer to this question involves a consideration of the changes made in such proceedings by the statutes of 1889. Previous to that year a garnishee summons was issued as a mere aid to an order of attachment, and was only another method of attaching the defendant’s property. The affidavit and bond for attachment furnished the grounds and the authority for garnishment. Nothing more was required of the plaintiff except the showing that he had good reason to and did believe that the person or corporation to be summoned as a garnishee was indebted to the defendant, or had property belonging to him.' Whatever might be the ground laid in the affidavit for the attachment, it was the same ground which justified proceedings in garnishment. A summons in garnishment, like an order of attachment, could, under the statutes of 1868, be had in any civil action brought for the recovery of money, regard
1 ‘ That the order of garnishment shall not be issued by the clerk unless an undertaking on the part of the plaintiff has been executed, ... to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of such garnishment, if the order be wrongfully obtained.”
The undertaking for attachment is no longer sufficient for both attachment and garnishment. Thus, garnishment has been made an independent provisional remedy instead of a mere aid to attachment. Each proceeding is based upon its own peculiar
Does section 230 of the civil code authorize garnishment at the commencement of an action brought on a claim before it is due? The plaintiff in error contends that it does. That section reads :
“Where a debtor has sold, conveyed or otherwise disposed of his property, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts, or is about to make such sale, or conveyance, or disposition of his property, with such fraudulent intent, or is about to remove his property, or a material part thereof, with the intent or to the effect of cheating or defrauding his creditors, or of hindering or delaying them in the collection of their debts, a creditor may bring an action on his claim before it is due and have an attachment against the property of the debtor.”
The right to sue on a claim not due is purely statutory. In such a case, a cause of action does not exist independent of the statute. (Rullman v. Hulse, 32 Kan. 598; Wurlitzer v. Suppe, 38 id. 31, 34.) An action can therefore be maintained only as it is expressly authorized. To warrant such an action under section 230, two things must concur : (1) The disposal of property by the defendant, or his intention to dispose of it, with the fraudulent intent to cheat or defraud his creditors ; (2) the attachment of the defendant’s property. If the attachment fails, the action also fails. (Pierce v. Myers, 28 Kan. 364; Voorhis v. Michaelis, 45 id. 255.) If the writ of attachment be not served because there is no property to attach, it cannot be said that there has been an attachment in the case. The mere issuing of an order of attachment, without a levy being made, counts for nothing; the legal effect is the same as if an attachment had been actually made and after
Upon another ground, also, the decision of the lower court should be affirmed. The record shows that the requisite statutory bond was not given in the garnishment proceedings. This was a fatal omission. A summons issued without such bond should be set aside. (Ballinger v. Lantier, 15 Kan. 608; Rullman v. Hulse, 33 id. 670.)