| Kan. | Jan 15, 1884
The opinion of the court was delivered by
The facts of this case, stated briefly, are substantially as follows: On December 4,1882, A. J. Connelly brought an action before G. C. Hunter, a justice of the peace of Aubrey township, Johnson county, Kansas, against G. W. Woods, on a promissory note for $100, with interest, dated September 1,1882, and payable six months after date. Connelly filed this promissory note with the justice of the peace as his bill of particulars. On the same day, to wit, December 4, 1882, Connelly filed an affidavit with the justice of the peace for an order of attachment, in which affidavit he stated, among other things, that said note was due; and at the same time an attachment bond or undertaking was given, with A. M. Young as surety; and at the same time a summons and an order of attachment were issued by the justice, and placed in the hands of Charles Chrisman, a constable of Aubrey township, in said county, who duly served the same
Woods never made any appearance in the case, although he had knowledge of the same prior to the rendition of the judgment therein. The proceeds of the sale of the horse were applied in payment of this judgment, and also in payment of two other judgments which had also been rendered by the same justice of the peace against Woods and in favor of other parties about that time. On January 17, 1883, Woods brought this present action in the district court of Johnson county against Connelly, the plaintiff in said attachment action, and A. M. Young, the surety on the attachment bond, and Gr. C. Hunter, the justice of the peace, and Charles Chrisman, the constable, charging them, among other things, with having taken the said horse to the state of Missouri and selling him and applying the proceeds thereof to their own use. All the defendants answered to the plaintiff’s petition by filing general denials, and Chrisman also set up a justifi
From the foregoing facts, we think it will appear that one of the main questions involved in this case, if not the main question, is whether the justice of the peace, Hunter, had any jurisdiction to issue the said order of attachment; for if the justice had such jurisdiction, then the plaintiff below, Woods, has no right to recover as against the justice, and possibly not as against any other person; but if the justice did not have any such jurisdiction, then we think that Woods certainly has a right to maintain this action, and to recover the full amount which he did recover. It would seem that the horse was worth about $400, and that the jury, under the evidence and the instructions of the court below, deducted from that amount an amount equal to the three judgments which had been previously rendered by the justice of the peace against Woods and in favor of Connelly and others, and rendered their verdict for the excess of the value of the horse over and above the amount of the said three judgments.
That the promissory note sued on in the justice’s court was not due when the action in the justice’s court was commenced, there can be no doubt. It was not due when the
The main question in the district court, as in this court, was whether the order of attachment was valid, or not; and this question, as it was thought by the district court, depended upon this other question, whether the said promissory note was due, or not, when the order of attachment was issued.
Now there is nothing in the entire litigation from beginning to end, except Connelly’s affidavit, tending to show that the note was due when the order of- attachment was issued; but on the contrary, everything except the said affidavit tended to show that the note was not then due, and the jury made a special finding, stating that the note was not then due. The case must therefore be decided upon the theory that the note was not due when the said order of attachment was issued; and upon this theory, was the order of attachment void, or valid? There is no provision in the justices code authorizing an order of attachment to be issued upon a claim before it is due, and there is no provision in the code of civil procedure, or elsewhere, authorizing an order of attachment to be issued upon a claim before it is due, upon the grounds upon which the order of attachment was issued in the present case;
The judgment in the present case was rendered against both the justice of the peace and the plaintiff in the attachment proceedings. Was the justice liable? The jurisdictional facts upon which a justice of the peace may issue an order of attachment are the following: (1) An action must be commenced at the time or before the order of attachment is issued; (2) an affidavit for the attachment must be filed; (3) an attachment bond or undertaking must be given. (Sections 28 and 29 of the Justices Code.) Now all these things were done in the present case, but it is claimed on the part of Woods that the action was wrongfully commenced on a claim before it was due, and that the affidavit for the attachment, although sufficient upon its face, was not true, for the reason that it stated that the claim was due, when in truth and in fact it was not due. These are the only grounds upon which it is claimed that the justice of the peace did not have jurisdiction to issue the order of attachment, or that he wrongfully issued the same. Are these grounds sufficient to render the justice liable? We would hardly think they are. The affidavit for the order of attachment was sufficient on its face; and the affidavit is the principal thing upon which a justice of the peace issues the order of attachment, although of course, before issuing the same he should see that an action has been commenced in
Now, notwithstanding the fact that the note upon which Connelly commenced his action was dated September 1,1882, and purported to be payable six months after date, yet the justice might have supposed from the affidavit, either that the date of the note was wrong, or that the word “six” should have been “one” or “two,” or that the word “months” should have been “days” or “weeks,” or that some subsequent or collateral contract was entered into between the partiés whereby, and under the circumstances of the case, the note had become due prior to the commencement of the action. In other words, we think the justice of the peace had a right to rely upon the truthfulness of the affidavit, and was not bound to know, at his peril, that the affidavit was not true, and that the note was not in fact due when he issued the order of attachment. In other words, so far as the justice of the peace is concerned, he had jurisdiction to issue the order of attachment. But this jurisdiction, we think, was merely the jurisdiction of a ministerial officer, and not that of a judicial officer, and therefore, that while such jurisdiction will protect the justice, it will not protect any other person than the justice. It will not protect or exculpate Connelly. He must have known that the note was not due when he filed the affidavit for the order of attachment; and therefore we think he must be held to be liable for all that resulted from the wrongful procurement of the order of attachment. As to him, the justice of the peace
We have not been referred to any authority directly in point; but some of the authorities referred to have some analogy to this case. (See Drake on Attachment, ch. 5, and cases cited; Spice v. Steinbuck, 14 Ohio St. 213; Gillett v. Thiebold, 9 Kan. 427" court="Kan." date_filed="1872-01-15" href="https://app.midpage.ai/document/gillett-v-thiebold-7883034?utm_source=webapp" opinion_id="7883034">9 Kas. 427; Hannum v. Norris, 21 id. 114; Hauss v. Kohlar, 25 id. 640; Ivy v. Barnhartt, 10 Mo. 151" court="Mo." date_filed="1846-07-15" href="https://app.midpage.ai/document/ivy-v-barnhartt-6611777?utm_source=webapp" opinion_id="6611777">10 Mo. 151.) This last case is cited by counsel for plaintiffs in error, but we do not think that it has much application to the present case, for the reason that the case was decided upon the technical rules of the common law, and not under the more liberal rules of the code practice. The decision was that “an action of trespass will dot lie against a party for suing out an attachment, although the debt on which the suit was founded was n.ot due at the commencement of the suit;” and the court, in its opinion, uses the following among other language :
“ It is difficult to imagine the principle upon which an attempt is made to support an action of trespass on the facts of this case. The rule is stated in Chitty, 136, whenever an injury to a person is effected by regular process of a court of competent jurisdiction, case is the proper remedy; trespass is not sustainable.”
In this state, and under the more reasonable and liberal rules of the civil code, a party may simply state the facts of his case, and if he has a right to recover on such facts, he may recover in the action, whether the action is such as would at common law be denominated an action of trespass, or an action on the case, or some other kind of action. There, has been no question raised in this court with regard to the sufficiency of the pleadings in the court below, and hence the decision of this court will be made upon the facts of the case, and not upon any technical or arbitrary rules of pleading. The plaintiff, Woods, did not set forth the facts of his case very fully in his petition, though he did in his reply; and the defendants, Connelly and Hunter, did not set forth the facts of their defenses at all, but simply filed general denials.