24 Kan. 123 | Kan. | 1880
Plaintiff in error (plaintiff below) commenced an action on a promissory note, against defendant, before a justice of the peace, filed its affidavit, and obtained an order of arrest. Before the trial, the order of arrest was discharged, and this is the error complained of. The motion to discharge was sustained upon two grounds — one, a defect in the writ, and the other, the insufficiency of the affidavit. So far as the first ground is concerned, there was obvious error. The writ issued by the justice was without defect; but the constable gave it to defendant, and retained the copy upon which he made his return, and which did not have the name of the justice upon it. Nevertheless the defendant, who at first refused to submit to arrest, came before the justice, and “admitted himself under arrest and subject to the jurisdiction of the court in that regard.” The mistake of the constable in giving the wrong paper to the defendant did not vitiate the proceedings, and any mistake was waived by the .action of the defendant.
The other ground presents the only real question in the case: Did the affidavit make such a showing of fraud as ■compelled the sustaining of the order of arrest? We cannot'agree with counsel, that by deciding to issue the order, the justice so far found the affidavit to be sufficient as to prevent further consideration by him of the matter. While he acts judicially upon the affidavit in ordering the arrest, he •decides upon an ew-parte hearing, and when the defendant is .arrested, he may again, upon the motion of defendant, examine and decide upon the sufficiency of the showing in the affidavit, or, upon the denial of the facts in the affidavit by the ■defendant, proceed to an inquiry as to their truth as provided in §25 of the justices’ act. The question then is, Was the •showing prima facie sufficient, and did it cast upon the defendant the duty of denial or explanation? It is true the ■defendant filed an affidavit of denial, but no inquiry was entered into. The plaintiff’s showing was held insufficient.
These facts are stated in the affidavits more in detail, and other matters are also alleged, though mostly upon information and belief tending to strengthen the inferences deducible from these facts. This, however, is the burden of the complaint. Does it make a prima-facie showing of fraud? — for fraud alone under our constitution justifies an arrest for debt. We are inclined to think it does. It is the duty of an agent to remit to his principal the proceeds of the latter’s property sold by him. If he fails to do this and converts such proceeds to his own use, he is guilty of embezzlement and may be punished for the crime. If a party executes one conveyance or assurance of lands, and then another, in which latter he fails to give notice of the former, he is guilty of a misdemeanor. (Sec. 99 of Crimes Act.) Both of these wrongs are charged upon defendant. The note sued upon was for balances due upon sales made of plaintiff’s property. In settling, and to secure this claim, he gave a mortgage, and then, obtaining the mortgage on a false pretense, conveyed the property covered by the mortgage to a third party. This looks like fraud, and seems to call for explanation or denial. We think there was error in sustaining the motion to discharge, and for this error the judgment must be reversed, and the case remanded.
