38 Kan. 754 | Kan. | 1888
The opinion of the court was delivered by
This proceeding in error is brought to this court to reverse an order of the district court made upon an interplea filed by D. P. Johnson under §1 of chapter 137 of the Laws of 1877. (Comp. Laws of 1885, ¶ 3839.) The action was one in which J. A. Brant and U. M. Beachy, doing business under the firm-name of Brant & Beachy, were the plaintiffs, and W. A. Clark was the defendant. Brant & Beachy commenced their action against Clark for $978.48 for services rendered by them as agents in the sale of lands for Clark and others, and in such action obtained an order of attachment against the property of Clark, upon the ground that Clark
“1. That by their agreements with Wilson and his grantees, the plaintiffs acquired a lien upon the funds arising on sales made by them for the payment of their said claims.
“ 2. Conceding that in the absence of notice the lien of the interpleader under his mortgage was paramount to that of the plaintiffs, still he could waive such priority by parol, and did so waive the same as appears from the 18th finding of fact.
“3. Upon all the facts above stated, the plaintiffs have the superior equity to the fund in controversy, and the same must be held to satisfy any judgment that may be rendered in this action against the defendant W. A. Clark.”
“ It is therefore considered by the court here that the claim of the said plaintiffs to the $1,100 garnished and attached in the hands of the Goodin Bank is prior, superior and paramount to that of said intervenor, D. P. Johnson, to said fund, and that he take nothing by his said interplea, and that the plaintiffs recover their costs from Johnson.”
The “agreements” mentioned in the first conclusion of law were agreements made by the plaintiffs Brant & Beachy, first with E. E. Wilson, and afterward with Clark, and finally with Johnson, that their claim should be paid from the funds arising from the sales of the land; but how the plaintiffs by such agreements could acquire a lien upon such funds, or how such a lien could be enforced, in a proceeding in attachment and garnishment, it is difficult to understand. A proceeding in garnishment can be maintained only upon the theory that the property attached by such proceeding belongs to the defendant in the action, (which in this ease is Clark,) and not to anyone else. The second conclusion of law is also founded upon the theory that the plaintiffs had a lien upon the aforesaid funds, and that while Johnson may have had a paramount lien thereon, still that Johnson by his parol agreement with Brant & Beachy, waived his priority of lien and conferred priority upon the plaintiffs’ lien. As before stated, we think the plaintiffs did not have any lien upon these funds, and besides, Johnson’s waiver appears to have been wholly by parol and without any consideration whatever; and it was also an agreement to answer for the debt or default of another person. In this connection, however, we might also state that on September 25, 1884, Richmond & Titus, who were Johnson’s agents, wrote the following letter to the Goodin Bank,' which was also Johnson’s agent, which letter reads as follows:
“L. C. Stine, Cashier Goodin Bank, Ottawa, Kansas— Dear Sir: Yours of the 23d at hand. Underwood, Clark & Co. told us they should settle Beachy’s claim. Presume that they will do so if they have to. We think it will be arranged, but perhaps they hope to reduce the demand some.*758 We would prefer to have'the whole amount, but if Beachy’s claim must be settled, let it be done. U. C. & Co. will make the amount good to us.
Yours truly, Richmond & Titus.
We notify U. C. & Co. to-day.”
We think that the able and careful district judge whO tried this case was in some manner or for some reason misled; and believing the judgment to be erroneous, it will be reversed.