18 Kan. 140 | Kan. | 1877
The opinion of the court was delivered by
This was an action of attachment. Many questions are presented, and many errors alleged. Some of them however are of minor importance, and deserve little notice. A motion was made to dissolve the attachment, which had been levied upon a quarter-section of land belonging to defendant, the plaintiff in error. Among the grounds in the motion are these:
First, that the affidavit for the attachment was not true. The charge was, that the defendant was about to convert his property into money for the purpose of placing it beyond the reach of his creditors. It appears that the only property belonging to defendant was this quarter-section, except perhaps some lots mortgaged for their full value. The defendant in his affidavit denied the charge, but the affidavit of one witness was in evidence showing that Gapen offered him the land for what he said was not half the value, but that he was determined to sell it to prevent Stephenson from getting it; and the
A second ground was, that the bond was insufficient in amount. The claim was for $7,500. The bond in the same amount. The statute requires the bond to.be in “not exceeding double the amount of the plaintiff’s claim.” The statute was complied with. If the amount was really insufficient to properly protect the defendant, the court on motion could have required a larger bond.
Another ground was, that one of the appraisers was not a householder. The sheriff’s return shows that both appraisers were duly qualified. Conceding for the purposes of this case, that in this respect the sheriff’s return may be contradicted, and that the testimony discloses that one of the appraisers was not a householder, (though we do not decide that either of them is the case,) still we think the defect is not such as to cause a dissolution of the attachment. It was not a matter going to the right of the plaintiff to have an attachment — not a matter over which he had any control. The mistake was one of the officer, and not of the plaintiff, and not a mistake as we think prejudicing the substantial interests of the defendant.
One or two other grounds were presented in the motion to dissolve the attachment, but those noticed were the principal ones; and in none of them do we see anything of substantial error. The ruling of the court therefore in refusing to set aside the attachment must be sustained.
“Actions shall be triable at the first term of the court after the issues therein by the times fixed for pleadings are, or should have been, made up; and when, by the times fixed for pleading, the issues are or should have been made up during a term, such action shall be triable at that term.”— Gen. Stat., p.689, §315.
Here no distinction is made between issues of law, and issues of fact; and an action was triable at a term whether the issues of law or fact were made up before or during that term. The language used is, “ by the times fixed for pleadings are or should have been made up.” The significance of this will be more apparent hereafter. In 1870 the legislature made this change:
“Actions shall be triable at the first term of the court after the issues therein, by the times fixed for pleading, are or' should have been made up ten days before the term. When issues of law are made up, either before or during a term of court, but after the period for preparing the trial docket for such term, the clerk shall place such actions on the trial docket of that term.” — Laws 1870, p. 174, § 10.
At the same time was added this provision: “ But no witnesses shall be subpenaed in any case while the cause stands upon an issue of law.” (Laws 1870, p. 173, § 9.) By this a distinction was drawn between issues of law, and issues of fact. The former were triable at a term whether joined before or during the term, but the latter only when they were or ought to have been made up ten days before the term. Here the significance of the words heretofore noticed,'“ by the times fixed for pleadings are or should have been made up,” becomes more apparent. The “ times fixed for pleadings,” are specified in the statute, or prescribed by order of the court. A plaintiff might give his adversary a few extra days in which to file his answer, and still not lose his right to insist upon a trial at the ensuing term, for the language is not limited to the actual making up of the issues, but refers also to the time fixed for making them up. In 1871 another change was made:
*146 “Actions shall be triable at the first term of the court after the issues therein by the times fixed for the pleadings are or shall have been made up ten days before the term. When issues of law are made up either before or during a term of court, but after the period for preparing the trial docket of such term, the clerk shall place such actions on the trial docket of that term; and when any demurrer shall be adjudged to be frivolous, the cause shall stand for hearing or trial in like manner as if an issue of fact had been joined in the first instance; but the court may in its discretion fix specially the time when such cause shall stand for trial.” — Laws 1871, p.278, § 5.
By this, two changes were made. The words “should have been made up,” were changed to “shall have been made up;” and authority given to enforce the trial of an issue of fact joined after the overruling of a demurrer adjudged to be frivolous, at the same term at which the action would have been triable if an issue of fact had been joined in the first instance. The change from “should have been” to “shall have been,” is, as applicable to this case, significant. As the sentence now reads, it seems to refer exclusively to the actual time of making up the issues. This construction may perhaps leave some words in the sentence destitute of much force, but only thus does it seem to us can any significance be given to the change of language. “Are,” and “shall have been,” belong to the indicative and not to the potential mood. They refer to the actual, and not to the possible, or permissible. In the case before us, the petition was not settled until the very term at which the trial was had. Up to that time there was a defect in the petition which the defendant had a right to have cured before being compelled to make any defense. No delay had been sought by frivolous demurrer, or motion. The objections he made to the petition were good, and sustained. The petition was defective. And yet within nine days after the petition was perfected, the defendant was forced to answer, subpena his witnesses, and go to trial. This was against the spirit as well as the letter of the statute. We are led therefore to the conclusion, that there was substantial error in overruling
It is hardly necessary to inquire into the alleged errors occurring on the trial. We may not anticipate what further proceeding will be had in this case, or the questions that will be raised.