Eddy v. Weaver, 37 Kan. 540

Eddy v. Weaver

37 Kan. 540 | Kan. | 1887

The opinion of the court was delivered by

Valentine, J.:

This was an action brought in the district court of Pawnee county, by N. E. Weaver and D. S. Bill, partners as Weaver & Bill, against George A. Eddy, Nelson Adams, William A. Brigham, and John T. Moore. Afterward the case was removed to Harvey county, where it was tried before the court, without a jury. The court made special findings of fact and a conclusion of law, and upon such findings and conclusion rendered judgment in favor of the plaintiffs and against Eddy and Adams for $714.87, and costs. Eddy, Adams, and Brigham, as plaintiffs in error, have brought the case to this court, making Weaver & Bill defendants in error.

*548 1. Case containing all the evidence itself to snow.

*547The first point made by the plaintiffs in error is, that the findings of fact are not sustained or authorized by the evidence. This seems to be true with respect to some of the findings; but the defendants in error claim that the case as brought to this court does not purport to contain all the evidence introduced on the trial below, and therefore that it cannot be known whether the findings of fact are sustained by sufficient evidence, or not. It is true that the case proper does not purport to contain all the evidence, but the judge of the court below, at the time of settling and signing the case, certified that the case “contains all the testimony offered or received on the trial.” This brings us to the question whether the trial court, when settling a case for the supreme court, can properly insert in a certificate thereto, other facts and statements than those already inserted in the case, and such facts and statements as are not necessary, for the purpose of merely showing that the case has been properly settled. We can *548answer readily that such a thing could not be done in the absence and without the knowledge and consent of the parties not making the case. In the case of Bartlett v. Feeney, 11 Kas. 594, 602, it was held that, under the circumstances of that case, the statement of a fact which was not inserted in the case-made, nor entered in the proceedings of the court, but which was merely certified to by the judge at the time of settling and signing the case, would not be considered by the supreme court. In the case of Brown v. Johnson, 14 Kas. 377, it was held that “the signature of a judge to a case-made, or a bill of exceptions, imports the truthfulness of the preceding statements in such case or bill, nothing more; and we must look to those statements to see whether all the testimony is preserved or not.” And in the nature of things, this must as a rule be so. Where a case, when it is served upon the adverse party, does not purport to contain all the evidence, he has no further interest in the matter than to know that what the case does contain is correct. Usually in such cases, it is a matter of entire indifference to him as to how much or how little of the evidence is contained in the case; and if what is contained in the case is correct, he has no need to suggest any amendments to the case with regard to the evidence, although the case may not contain one-half, or indeed any of the evidence. Usually, when a party making a case for the supreme court desires that it shall.be shown that the case contains all the evidence, the case itself as served upon the adverse party should contain a statement to that effect, so as to give the adverse party an opportunity to suggest amendments, if he thinks the statement untrue, either by striking out the statement or by inserting such other evidence as he may believe has been omitted; and thereby make the case speak the truth. It is the case itself, and not the certificate of the iudge, which should show whether all the evidence in-educed ou the trial js contained in the case or not. All that the judge in settling a case for the supreme court can properly do in the absence of the parties, and all that he need to do in any case, is to examine both the case as it *549has been made and served, and the amendments thereto as suggested by the adverse party, and then to allow all of each so far as the same are correct, and so far as the amendments have relation to the case as made and served; and also to correct any erroneous statements made in either the case or the amendments, so that the case when settled shall speak the truth. And when the case is thus settled, all that the judge need further to do is to indicate the same in some manner upon the case, and sign his name thereto; generally, however, it would be better for the judge to make a formal showing of the settlement of the case, as by a formal, certificate of the same, giving the date of the hearing and of the settlement, the names of the parties appearing, a statement as to whether those of the parties not appearing had sufficient notice of the time and place of the settlement; and the judge might also indorse upon the case an order for the clerk to properly attest the same with his signature and the seal of the court. Nothing else is necessary to be done. But suppose that both parties are present, and the court does in fact insert either in the case itself or in his certificate thereto, new propositions not necessary, merely to make the case, as it was originally made and served, or the amendments thereto as originally suggested, speak the truth: then are the parties bound by such new propositions so inserted ? This probably depends upon the further question whether the case is settled prior or subsequently to the time fixed for making and serving the case, and for the suggestion of amendments. If settled before that time the new propositions might very properly be inserted, but if afterward, then they could not properly be inserted, for to insert them at that time would be equivalent to making a new case for the supreme court, after the time for making the same had elapsed, which cannot be done. (Ætna Life Ins. Co. v. Koons, 26 Kas. 215; Dodd v. Abram, 27 id. 69.) This case was settled long after the time had elapsed for making and serving the case and for suggesting amendments; hence the statement contained in the certificate of the judge, that the case “contains all the testimony offered and received,” is improper.

*550As this case comes to this court, we think we must decide the same upon the theory that it is not sufficiently shown that all the evidence has been brought to this court, and therefore upon'the theory that the findings of fact as made by the trial court are absolutely correct, although some of them seem from the evidence brought to this court not to be sustained by sufficient evidence. We would say, however, that we think this works no injustice, for we think that not only the findings, but also the evidence, will sustain the judgment that was actually rendered by the court below.

The material facts of the case seem to be substantially as follows: In two suits before a justice of the peace of Pawnee county, Weaver & Bill, as plaintiffs, obtained attachments which were levied upon the property of William H. Mitchell, who was the defendant in these two suits. Weaver & Bill were non-residents of the county, and gave no security for costs, but it is not claimed in this court that this renders the attachments void. Afterward, Mitchell, Jerry Toles, George A. Eddy, T. H. Edwards, and Nelson Adams, for the purpose of procuring the possession of the attached property, gave to the constable, L. P. Elliott, a forthcoming bond; but the property was never delivered to them nor to anyone else under the bond, but was retained by the constable; hence the bond was void for want of consideration. (Eddy v. Moore, 23 Kas. 113.) At the same time Eddy and Adams held judgments against Mitchell, and they procured executions to be issued upon these judgments, and to be levied upon the same property by the same constable; and the property was afterward sold by the constable under these executions to several hundred different persons, in small lots, for the aggregate sum of $1,050; and the proceeds of the sale, after paying costs, were paid to Eddy and Adams, and none of the proceeds were paid to Weaver <fe Bill. Afterward, Weaver & Bill procured judgments in their suits, and also procured orders to be made by the court that the attached property be sold to satisfy their judgments, but as the property had already been sold to satisfy the executions of Eddy aud Adams, the property could not again be sold.

*551 2 Execution creditors when liable to attaching creditors.

*550The question now arises, are Eddy and Adams liable to *551Weaver & Bill for the proceeds of the sale of the said property, up to the amount of Weaver & Bill’s judgments, to wit, $521.68 ? We think this question must be answered in the affirmative. Eddy and Adams, with a full knowledge of all the facts, caused their executions to be levied uPon the property, the property to be sold under the executions, and scattered among hundreds of people, and the proceeds of the sale to be paid to themselves. It is true they believed at the time that the attachments were void, and that Weaver & Bill had no lien upon the property, but in this they were mistaken, and the mistake was one of law, and not one of fact, and it cannot excuse them. They had a full and complete knowledge of all the facts, and ought to have known that Weaver & Bill had a prior lien upon the. property, and that if they interfered with such lien, or impaired its efficacy in any respect, they did so at their peril. They claim, however, that by the suit of John A. Moore against Eddy, Adams, and others, upon the forthcoming bond, (reported in 23 Kas. 113,) the matter of this suit has become res adjudicata, and that by such suit Weaver & Bill are estopped from claiming anything in this suit. It is impossible to see why this should be so. That suit was prosecuted upon the bond, and nothing else. It was an action against the obligors of the bond for a breach thereof, and nothing else; and the parties in that suit, as well as the issues, were different from the parties and issues in this suit, and that suit can have nothing to do with this. It is also claimed as a defense, that the present action is barred by the statute of limitations, (Civil Code, § 18, subdiv. 3,) which provides that “ an action for taking, detaining, or injuring personal property” shall be brought within two years, and not afterward. This is no such action, and this action is not barred by said statute, or by any other statute of limitations. The only statute of limitations that could operate in cases of this kind would be subdivision 2 of §18 of the civil code; but that statute has not so operated as to bar this action.

The judgment of the court below will be affirmed.

All the Justices concurring.