Long Bros. v. Hubbard

6 Kan. App. 878 | Kan. Ct. App. | 1897

Dennison, P. J.

On December 27,1888, tbe plaintiffs commenced an action in the District Court of Pawnee County, Kansas, against George E. Hubbard, by filing therein a paper purporting to be a petition, and causing a summons to be issued and served upon said Hubbard.

On March 9, 1889, an affidavit of M. E. Haseltine, agent of the plaintiffs, was filed in said court, and a bond was filed, signed by Long Brothers by M. E. Haseltine, agent, as principals, and the Larned State Bank by Clark Gray, president, as surety, and an order of arrest was issued upon which the defendant, George E. Hubbard, was arrested. He gave a bail bond and was released. On January 9, 1892, the attorney for the defendant presented to the court a telegram from the defendant stating that he was sick and unable to attend court, and he also presented a physician’s certificate corroborating the statements made in the telegram, and asked for a continuance until the next term of court. The court refused to grant the continuance, and, on January 11, 1892, the cause was heard by the court in the absence of the defendant in person, although the record shows that he appeared by his attorney. The court heard the evidence of the plaintiff, rendered judgment against Hubbard for $1,344 and interest, and decreed that the order of arrest be sustained; and the sheriff was ordered to commit the said Hubbard to the jail of Pawnee County, and hold him until he should satisfy said judgment and be discharged according to law. The bondsmen were given thirty days to deliver the said Hubbard to the sheriff. At the April term, 1892, of said court, the defendant filed a motion to set aside and vacate the judgment and order of arrest for the reasons, first, that the pretended petition filed in said cause does not state any cause of action upon which a judgment could be rendered ; second, that no affidavit as required by law was filed in said cause, and no bond was given and executed by plaintiffs as required by law before the arrest of said defendant.

On April 28, 1892, the court sustained the motion to set aside the judgment, but took no action upon the motion to set aside the order of arrest. The plaintiffs were allowed to file an amended petition, and the cause was continued until the next term of court.

On May 18, 1892, the plaintiffs filed their amended petition. The defendant answered the amended petition, denying the jurisdiction of the court because no service had been made upon said defendant subsequently to the filing of the amended petition.

On January 6, 1893, the court took up the motion of the defendant asking that the order of arrest be vacated and set aside, and on January 7, 1893, set aside the order of arrest, and on the same day rendered judgment against Hubbard upon the amended petition for $1365.22 and costs.

The plaintiffs bring the case here for review, and in their brief make the following specifications of error :

1. The setting aside of the original judgment, of date of January 11, 1892.

2. Vacating, on the sixth day of January, 1893, the order of arrest.

3. The-holding that the affidavit for the order of arrest was not sufficient.

4. The holding that the amended petition did not relate back to the .date of filing of the original petition.

1. Errors waived. When the plaintiffs filed their amended petition, on May 18, 1892, they waived any irregularity or error that may have occurred prior to that . _ time. Garanflo v. Cooley, 33 Kan. 137. It is therefore not necessary to determine whether the court erred in setting aside the original judgment, rendered on January 11, 1892, because, if such ruling was erroneous, the error was waived by the filing of the amended petition.

2 Amended petition supersedes original. Both parties devote considerable space in their briefs to arguing the sufficiency and the insufficiency of the original petition. We cannot see where it in any .wise affects this case. When the amended petition was filed, it became x • 7 and must be treated as the original petition. The-summons, the order of arrest, and the subsequent judgment, must each be considered the same as if the amended petition had been filed at the time the original petition was filed. No other service of summons was necessary to obtain jurisdiction of the person of the defendant, and the order of arrest must stand or fall upon other grounds than the defects of the original petition.

3. Affidavit or "bond insufficient, order set aside. We will now consider the ruling of the District Court in vacating the order of arrest. The court had the undoubted, right to vacate or modify its . n , . magments or orders at or alter the term 0 ° at which they were made. See sections 178, 174, 568 and 569 of the Code. The question is, therefore, Did the court err in vacating the order of arrest? If either the affidavit or the bond was insufficient, the clerk had no jurisdiction to issue the order of arrest, and it should be set aside. ■

4. Section 114, Code. It is contended that the affidavit is insqfficient for the reason that the provisions of section 114 relative to the agency of Haseltine were not complied with. The provisions of section 114, supra, do not apply to affidavits for an order of arrest. Johnson v. McLaughlin, 7 Kan. 359. Other objections are raised against the affidavit, but we think it was sufficient to give the clerk jurisdiction to issue the order of arrest.

The bond required, before an order of arrest can be issued by the clerk, is set out in section 149 of the Civil Code, which reads as follows :

‘ ‘ The order of arrest shall not be issued by the clerk until there has been executed by one or more sufficient sureties of the plaintiff a written undertaking, to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the arrest if the order be wrongfully obtained, not exceeding double the amount of the plaintiff’s claim stated in the affidavit.”

A bond complying with the terms and conditions of this section is a prerequisite to the authority of the clerk to issue the order of arrest. If an order of arrest is issued by the clerk without such a bond, it is the duty of the court to set it aside. The bond issued in this case does not comply with the statute. No sufficient surety has executed it.

5. Bank cannot become surety. Becoming surety upon undertakings is no part of the business of banks, and the unauthorized act of Clark Gray, its president, in signing an undertaking for the bank, did not bind the bank in case of liability. Rahn v. Bridge Manufactory, 16 Kan. 277.

6. Decision correct, but wrong reason assigned. The court gave as a reason for vacating the order of arrest, that the affidavit was insufficient; but if its ruling is correct, it will not be set aside - . _ _ because its reasons thereior are not correct. It is contended by the counsel for the plaintiff in error that the court could not set aside the order of arrest, after judgment, and they'cite us to - section 103 of the Civil Code in support of this contention. It must be remembered that the judgment rendered on January 11, 1892,.was set aside on April 28, 1892, and there was no judgment against Hubbard, until after the order of arrest was set aside on January 7, 1893, after which, judgment was rendered against him.

The judgment of the District Court is affirmed.