26 Kan. 530 | Kan. | 1881
The opinion of the court was delivered by
On the 10th day of March, 1881, plaintiff in error brought an action against the defendant in error, on an account for boarding and washing, from January 1,1867, to January 1, 1880, aggregating the sum of $900. On the same day, he obtained an attachment against the property of the defendant. This was levied upon forty acres of land belonging to the defendant, situated in Johnson county. Summons was also issued on March 10, directed to the sheriff of Johnson county. He returned the summons not served, as defendant could not be found in that county. Plaintiff then caused a summons to issue to the sheriff of Elk county. This was served March 29. On the 17th day of March, 1881, defendant filed a motion to dissolve the attachment for the following reasons:
“ 1. Because the defendant is now, and was at the commencement of this action, a non-resident of Johnson county, state of Kansas.
“ 2. Because the defendant is now, and was at the date of the commencement of this action, a bona fide resident of Elk county, state of Kansas.
“3. Because of the illegality of the proceedings.
“ 4. Because the grounds laid in the plaintiff’s affidavit for an attachment are not true.
“ 5. Because the court has no jurisdiction of this case, or of the attachment proceedings.”
This motion was duly entered on the docket of the district court during the sitting of the March term for 1881, and by order of the court continued until April 30, 1881, for hearing at chambers. The hearing of the motion was had at Paola, at chambers, on April 30, in pursuance of the order
“1. Because the court has no jurisdiction of the defendant.
“2. Because the defendant is now, and was at the date of the commencement of this action, a non-resident of the county of Johnson, and state of Kansas.
“3. Because the defendant was, at the date of the commencement of this action, a bona fide resident of Elk county, Kansas.
“4. Because the summons issued herein by the plaintiff shows that the defendant is now, and was at the commencemént of this action, a non-resident of the county of Johnson, and state of Kansas.”
At. the June term thereafter, this motion came on for hearing, and the court, after having heard the arguments of counsel, dismissed the action. Plaintiff excepted to the dissolution of the attachment, and the dismissal of the action, find brings the case here to review the rulings of the court below.
An examination of the affidavits filed in the attachment proceedings, convinces us that the court properly discharged the attachment. It does not appear to us that any of the grounds alleged for the attachment were sustained by the evidence. The action of the court, however, in dismissing the action, is not sustainable. There was a general appearance | in the case by the defendant, for the purpose of contesting j the truth of .the grounds upon which the order of attachment! was issued. The motion was not to vacate it merely for want of jurisdiction on the part of the court, nor upon any technical grounds, but the merits of the affidavit for attachment were fully contested, and thereby defendant voluntarily submitted to the jurisdiction of the court. This was an appearance in the case. (Bury v. Conklin, 23 Kas. 460.) The order of the district judge, discharging the attachment, will be affirmed, but the judgment of the court below, dismissing the action, must be reversed. The cause will be remanded for