Manley v. Headley

10 Kan. 88 | Kan. | 1872

The opinion of the court was delivered by

Brewer, J.:

This case is similar in many respects to the cases of Foreman v. Carter, and Challis v. Headley and Carr, 9 Kas., 674, 684. Like them it comes here from a decision -of the district court of Atchison county, setting aside a judgment as void. Many of the same questions arise in this that were in those cases. But there are some defects in the proceedings here which render the judgment void, and compel us to affirm the decision of the district court. One of these defects only will require notice. The judgment set aside was rendered in an attachment suit. The affidavit for attachment was made by_ one Robert L. Pease, who in the affidavit swears that he is one of the plaintiffs in the action. As the pleadings and entire proceedings in the case, other than this affidavit, show that there was but one party plaintiff, and that one a corporation, there is evidently a mistake in this affidavit. Indeed, in an affidavit for publication filed some days afterwards, the same party (Robert Li. Pease) makes oath that he is the authorized agent of the plaintiff. Upon the filing of this affidavit an order of attachment was issued, real estate seized, an affidavit for publication filed, as personal service could not be had, publication made, and judgment entered by default. The judgment therefore depends for its validity upon the sufficiency of this affidavit. If that fail, the judgment must fall; for if no attachment could rightfully issue, no publication could legally be made, and the defendants were never brought into court. Section 200 of the code of 1859, Comp. Laws, p. 155, in force at the time of the commencement of this suit, authorized the issue of an order of attachment when there was filed in the clerks office an affidavit of “the plaintiff, his agent, or attorney,” etc. The proceedings in attachment are purely statutory, and only by following the provisions of the statute is there power to act. The filing of an affidavit by one of the parties authorized by the statute is essential to the validity of any order of attachment. Here the plaintiff, being a corporation, could not and did not make the affidavit; nor is there anything in the record to show that the party who did was at the time either an agent or attorney. In fact, for all the record discloses, the affidavit was a volunteer affidavit, by an unauthorized party. Upon such an affidavit no order of attachment could rightfully issue. Willis v. Lyman, 22 Texas, 268; Pool v. Webster, 3 Metc., (Ky.,) 278; Dean v. Openheimer, 25 Md., 368. It may be said that the affidavit for publication, filed a few days thereafter, showed that Pease was the agent of plaintiff. It only shows that he was then the agent. This relation once shown to exist may be presumed to continue throughout the case, and to justify his participation in the subsequent proceedings. But we know no rule by which we can make such a presumption relate backward; and hold that because he is shown to have been an agent at one time, he was such agent at a previous time. Besides, the affidavit for attachment attempts to give Pease authority for making it. He asserts that he is himself “ one of the plaintiffs.” It is not silent as to his authority, so that we might appeal to any presumption. He asserts his authority. But the petition shows he had no such authority. It is a matter of grave doubt also whether the notice of publication was sufficient, but as this disposes of the case we forbear any inquiry into that question. The order of the district court setting aside the judgment will be affirmed.

All the Justices concurring.