67 P. 857 | Kan. | 1902
Lead Opinion
The opinion of the court was delivered by
One C. A. Olson gave his note to his brother-in-law, A. L. McCracken, for the sum of $675, and secured the same by a chattel mortgage upon a stock of groceries, owned by Olson. McCracken being in possession of these goods, the plaintiff in error Green, who was a creditor of Olson, caused an attachment to be levied thereon, claiming that the mortgage from Olson to McCracken was fraudulent and void as against his creditors. The goods were disposed of under this attachment, and McCracken brought this action against Green and the constable who levied the order for the purpose of recovering the value thereof. The case was brought in the court of common pleas of Wyandotte county on July 14, 1898. On that date summons was issued’ for both defendants and returned, July 21, non est as to Green, who was a non-resident of Kansas. On September 17 plaintiff filed his affidavit for an attachment, and the order therefor was returned October 15 without
Various errors are alleged as ground for reversal. These will be considered in the order in which they are presented in the briefs.
First. The first is that growing out of the overruling of Green’s motion to dismiss, the claim being made that, inasmuch as no service was obtained upon him before the expiration of sixty days after the filing of the petition, the court was without jurisdiction to proceed further in the case.
Section 57 of the code of civil procedure (Gen. Stat. 1901, § 4487) provides
“A civil action may be commenced in a court of record by filing in the office of the clerk of the proper*333 court a petition and causing a summons to be issued thereon.”
This case then was properly commenced on the day of the filing of the petition. Successive but unsuccessful attempts were made thereafter to get jurisdiction of the property of the defendant. These attempts were continued until finally they were successful through garnishment proceedings, and thereafter prompt steps were taken to procure service by publication. Neither the section quoted nor any other one requires the petition to be refiled after the expiration of sixty days in cases where service has not been had during that interval. To be sure, the mere filing of the petition without being followed by the service of summons in the time specified would not stay the statute of limitations as provided in section 20 of the code (Gen. Stat. 1901, § 4448). Neither would it amount to a lis pendens under section 81 (Gen. Stat. 1901, §4515). But neither of these questions arises here. The motion of the defendant was to dismiss the action. Plaintiff in error thinks that the case of Jones v. Warnick, 49 Kan. 63, 30 Pac. 115, is decisive of the question in his favor. We are unable to see the relevancy of this case to the question in hand. We see no error in the action of the trial court in overruling this motion.
Second. During the progress of the trial plaintiff below thought it was necessary for him to prove the indebtedness of Olson to him, and for that purpose sought to introduce the note in evidence for' the security of which the chattel mortgage on the goods in question had been given. Objection was made to its introduction because it had not been stamped as required by the United States revenue law at the time it was given. It had, however, been subsequently
Third. Plaintiff below sought to introduce the testimony of his wife for the purpose of showing that he had money to loan Olson, as he claimed was the case, which defendant had introduced much evidence to disprove, and, in order to render the evidence competent by proving that she was acting as his agent, she was asked the following questions :
“Ques. You may state, Mrs. McCracken, if Mr. McCracken, your husband, about August or September, 1895, appointed and empowered you to keep and care for as custodian of his and your money. Ans. He did.
“Q. Now, you may state to the jury, if you know, :just as near as you can, the amount of money that 'your husband had, if any, in the month of August or ¡September, 1895. A. Something over $700.
j “ Q. You may state, Mrs. McCracken, if you know ¡ the amount of money that your husband and you had ¡which was in your possession, if any, about the months .j of April and May, 1898. A. Between $600 and $700.
“Q. You may state, Mrs. McCracken, what was done with any of that money between the 27th of April, 1898, and about the 15th of May, 1898. A. On the 27th of May we loaned to Mr. Olson $75.
*335 “Q,. Now, do y.ou know any disposition that was made of any of that money in, on or about the 11th. of May, 1898? A. We loaned Mr. Olson $500.”
All of this evidence was objected to by the defendant below. It is urged that its introduction was erroneous for three reasons :
1. That the wife being incompetent to speak except as the agent of her husband in matters pertaining to such agency, the agency to keep and care for money as the custodian of it was not an agency to loan ; hence, while she might testify that she had the same in her possession, she was not competent to testify concerning the manner of loaning. It will be observed that the agency of Mrs. McCracken was to care for as well as to keep the money, and within the scope of that agency would fall the right to loan the same, or at least this right does not so clearly fall without the scope of that agency as that we may say that the trial court erred in admitting the evidence.
2. It is claimed that the creation of an agency cannot be proven by the mere declarations of the agent, and that such declarations are not competent to establish such agency. This claim is well taken ; however, it has no application here. Her agency was not sought to be established by the declaration of Mrs. McCracken. It was her sworn statement in court that established it, and this is a perfectly competent method of establishing that fact. (Mo. Pac. Rly. Co. v. Stults, 31 Kan. 752, 3 Pac. 522; Paulsen v. Hall, 39 id. 366, 18 Pac. 225 ; W. & W. Rld. Co. v. Kuhn, 38 id. 104, 16 Pac. 75.)
3. Plaintiff further urges that this agency could not be legally established by the evidence of Mrs. Mc-Cracken, because that necessarily carried with it the presumption that she was thus testifying concerning
In Douglass, Sheriff, v. Hill, 29 Kan. 530, where the wife had testified that the husband was her agent in a certain transaction under consideration, the court said :
“Now, whether she could testify as to what she said to her husband, or to what her husband said to her, or as to any communications between them, here was enough and competent testimony to show prima facie that he was acting as her agent. Therefore he was a competent witness,” etc.
In the case at bar it may have been that the agency was created through the intervention of some third person for the purpose named.
4. During the progress of the trial, it became necessary to prove the value of the goods taken, and to establish this considerable evidence was introduced by both plaintiff and defendant, and for this purpose the plaintiff introduced the writ of attachment and return thereon, including the inventory and appraisement of the goods as made by the constable and the appraisers sworn by him. This is urged as error, as such appraisement was incompetent, as against defendant in the action, to prove such value. The question, perhaps, is not entirely free from doubt. We conclude,
5. The claim is made that the court below erred giving the third instruction to the jury. Withoi
6. Objection is made to an instruction which directed the jury that if they found for the plaintiff his measure of damages should be the sum they should find from the evidence to be the reasonable market value of the property taken from him under the writ of attachment at the time it was taken, but in no case should such verdict be more than the amount secured by the mortgage. Plaintiff in error insists that inasmuch as various accounts and due-bills were taken, and that the evidence showed that some money had been collected thereon, the jury should have been instructed to return no greater verdict than the value of the goods less the amount of money collected on the accounts. Closely speaking, this contention may be correct, but we think it was harmless error, if error at all, because the entire case clearly shows that the battle raged around the question of the right or wrong: of the attachment; and more than this, it does not appear but that the jury made the necessary deductions, for if there was anything due at all from Olson to Mc-Uracken it amounted to over $700, whereas, the verdict of the jury in McCracken’s favor was but for $390, and, from the evidence of the value of the goods, the jury might have found them worth the entire claim of the plaintiff.
The judgment of the court below will be affirmed.
Dissenting Opinion
dissenting from fourth paragraph of syllabus and corresponding portion of the opinion.