65 P. 250 | Kan. | 1901
The opinion of the court was delivered by
Several questions were ably discussed in the briefs herein, and upon some of them a strong oral presentation was made by counsel for plaintiff in error, who alone appeared at the time the case was set for hearing in this court. In the view we take of the matter in controversy, however, there is but one proposition for us to consider : Did the order of the judge of the court below operate to release at any time the property seized under the attachment as to an execution creditor who had levied subject to such attachment ?
We think this question must be answered in the negative. In reaching this conclusion, we may fully agree with the counsel for plaintiff in error that the action of the clerk in withholding the order of the judge from the files of the case did not prevent such order from taking effect, and while we do not find it necessary, and therefore do not pass upon that question, we are impressed with the reasons existing in favor of the rule that the mere- neglect of a clerk to enter the date of reception upon such a paper and place it among the other papers with which it belongs ought not to be construed as nullifying its provisions. But the order itself, containing a clause which prevented it from taking effect, suspended its operation for thirty days from and after December 24, 1895, and
Probably because the first order, the one dissolving the attachment, had not been filed the later order did not refer to it. It may be said that the suspension of the first order was granted for a particular purpose only, and that if an application for review should not be perfected and filed within the time limited the order of dissolution would go into effect, and in that event, after the lapse of such time it ought to be regarded as having been in force from its date.
We might grant such a contention without affecting the result, for in this case long before the expiration of that period the plaintiff made application to reopen and rehear said application, on the ground that the affidavit of Booth was false and that its use was a fraud practiced upon the judge, and, whatever may be the rule in such a case as to parties actually acquiring an interest in property after the discharge of the attachment and before a rehearing thereon, in this case the rights of no third parties intervened ; and as to the parties to the action the judge at chambers undoubtedly had a right, upon notice, to bring them before him and make an order which, under the facts really existing, was legal and just.
The plaintiff in error, having levied subject to such attachment, could not obtain priority until the same was dissolved, and as to him the plaintiff below had a right to make application to review the judge’s first order in the appellate court, or it could apply to said judge, and for good cause shown procure an order which was tantamount to a reversal of it, which would have been all it could have gained by proceedings in error in an appellate tribunal.
The judgment of the district court is affirmed.
