22 Kan. 374 | Kan. | 1879
The opinion of the court was- delivered by
This was an action on an attachment bond, in which judgment was recovered against the plaintiff in the .attachment and the sureties on his bond. The first question ■of importance is, as to the effect of the ruling of the district judge on the motion to dissolve the attachment. The motion was sustained, and the attachment dissolved, and the contention of defendant in error is, that such ruling is conclusive that the attachment was wrongfully obtained. The condition ■of the bond was, to pay damages “if the order therefor be wrongfully obtained.” The contention of the plaintiffs in ■ error is, that the mere fact that the attachment was discharged, does not prove that it was wrongfully obtained. Non constat, but that the discharge was on account of some informality or technical defect, and that in such a case the .attachment could not justly be said to have been wrongfully -obtained; that these words imply a want of actual merit in .the attachment, the existence of a state qf facts which forbids .such a summary seizure of property, and that this is a question of fact which must go to a jury for decision.
“The reasons for holding such decisions (i. e., decisions upon motions) not to be conclusive in a regular suit, were in an early case in New York stated to be, because ‘it is a fact, well known, •that such motions do not admit of that grave discussion and consideration as questions arising on demurrer, in arrest of judgment, or for a new trial. Again: Decisions on summary application can never be thrown into the shape of a record, and become the subject of review in any other court.’ It will be seen that the reasoning of the court in this case (Simson v. Hart, 14 Johns. 75), which seems to be a leading American case upon the subject, is inapplicable to those motions which admit of ‘grave discussion and deliberation,’ and are capable of ‘ being thrown into the shape of a record,’ and being the ‘subject of review in another court.’ In New York, the decision of a motion, notwithstanding the general declarations to the contrary frequently made, may be ■res judicata.”
In support of this, the author cites the case of Dwight v. St. John, 25 N. Y. 203, in which case the decision of a motion to have certain judgments canceled and discharged of record as satisfied, was held conclusive in a subsequent action, •on the ground that the matter was heard upon full proofs, and that the proceeding was liable to review in the appellate •court; and the author then concludes: “From this decision we may infer that in New York, if not' in other states, the decision of a motion is as final and conclusive as the decision •of a trial, if the proceedings permit of a full hearing upon the merits, and the order made is liable to review in some appellate court.” See also, McCullough v. Clark, 41 Cal. 298; Langdon v. Raiford, 20 Ala. 532; Noble v. Cope’s Adm’rs, 50 Pa. St. 17; Second Ward Bank v. Upman, 14 Wis. 596; U. P. Rly. Co. v. McCarty, 8 Kas. 132; Mitchell v. Mattingly, 1 Metc. (Ky.) 237. With this view of the conclusiveness of the ruling on the motion to vacate the attachment, we think the petition must be held sufficient as against any objection raised for the first time on the trial, and by objection to the
In Sewall’s Falls Bridge v. Fisk, 3 Foster (N. H.), 171, it appeared that the plaintiff’s toll-bridge was carried away through the fault of defendants, and the loss of tolls during the time reasonably necessary to rebuild was adjudged one element in the damages recoverable. In Lacour v. The Mayor, &c., 3 Duer, 406, the plaintiff’s manufactory was in
As this item of damages was recoverable, it was a matter of proof, and we think the testimony offered to prove it legitimate and competent. One or two questions may be open to criticism, but we see no error therein sufficient to justify a reversal.
The judgment will be affirmed.