4 Kan. App. 668 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
This action was originally brought in the probate court of Lincoln county by the Saline Valley Bank against the estate of W. E. Morgan, deceased, to establish as a claim against said estate the balance due upon a certain judgment claimed to have been rendered by one James H. Smith, a justice of the peace of said county, against said W. E. Morgan during his lifetime, and in favor of said bank, for the sum of $181.35, and interest at 10 per cent. It is alleged, in the original action before the justice of the peace, that a promissory note of the face value of $200 was garnished in the hands of one David Ritchie, and by him turned over to the court, which was on the 28th day of March, 1890, sold by order of the court for the sum of $25 at constable’s sale. The probate court found that the judgment and demand of. the Saline Valley Bank had been fully paid, and rendered judgment against said bank for costs. Prom this judgment the bank appealed to the district court of Lincoln county, and, upon trial had therein to the court, a jury being waived, judgment was rendered against the estate and in favor of said bank. A motion for a new trial was filed and overruled, and the administratrix brings the case here for review.
There are several errors assigned, but we shall consider only two. It is first complained “ that the court
“ State of Kansas, Lincoln county, ss.
“ Before me, the subscriber, ;\t probate judge in and for said county, personally came A. Marshall, and being by me first duly sworn, upon his oath says, that the account thereto annexed is just and true and correct, and that to the best of his knowledge and belief he has given credit to the estate for all payments and offsets to which it is entitled, and that the balance claimed ($189) is justly due. A. Marshall.
“ Sworn to and subscribed before me this 3d day óf April, 1891. H. M. Gilipin, Probate Judge.”
After several continuances this cause was heard by the probate court, which rendered the following decision :
“Tuesday, April 28, 1891, 10 o’clock a. m. — After hearing the evidence, argument of counsel, and being fully advised in the premises, the court finds that the said judgment-demand of the Saline Valley Bank against said estate has been fully paid, and the costs •of this hearing, amounting to $6.85, taxed to plainiff.”
The only testimony offered at the trial" in the district court shown by the record is that of E. E. Abbott, the constable, in reference to the time when he received the order of sale, when he posted his notices and made the sale. Paragraph 2868, General Statutes of 1889, provides:
■“Any person may exhibit his demand against such estate by serving upon the executor or administrator a notice in writing, stating the nature and amount of his claim, with a copy of the instrument of writing or account upon which the claim is founded, and such claim shall be considered legally exhibited from the time of serving such notice.”
Paragraph 2870 id. provides :
“Any person having a demand against any estate may establish the same by the judgment or decree of some court of record, in the ordinary course of proceeding, and exhibit a copy of such judgment or decree to the probate court, but the estate shall not be liable for costs in any such proceeding commenced within one year from the date of the letters of administration.”
Paragraph 2872 id. provides :
“No probate court shall allow any demand against any estate unless the claimant shall first make oath in open court, or file an affidavit with such claim, stating to the best of his knowledge and belief, he has given credit to the estate- for all payments and offsets to which it is entitled, and that the balance claimed is justly due. The affidavit in this action shall not be received as evidence of the demand, but the same shall be established by competent testimony before it is allowed or adjusted.”
“Upon the filing of such transcript and papers in the office of the clerk of the district court, the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew without regarding any error, defect, or other imperfection in the proceedings of the probate court.”
We think, under the section last cited, that the jurisdiction of the district, court is strictly appellate, the same as it would be in the case of an appeal from a justice’s court, and that it would have no larger juris-, diction than had the probate court in the first instance. This being true, it was incumbent upon the bank to establish its claim by competent testimony the same as is required to be done in the probate court under paragraph 2872, supra. This claim, being founded upon a judgment rendered before a justice of the peace, did not establish itself under paragraph 2870, it not being a judgment of a court of record. The statute expressly provides, “that after the transcript is filed, the district court shall try the case anew.” And certainly to try it anew, and find that a certain amount was due, would require proof of the amount, and in this respect there is a total failure to show any amount due upon the judgment of the justice of the peace.
Another point contended for by the plaintiff in error is that the court erred in sustaining the demurrer to the second ground of defense in the answer. The garnishment process simply gives 'to the creditor the same right to enforce the payment of the money from the garnishee that the debtor previously had. It is in effect only an assignment of the claim from the debtor to the creditor. The creditor gains .no more or greater rights than the debtor had, and the gar
A mere paper evidencing debt, such as a promissory note, in the hands ofia third person for the purpose of enabling him to collect money due the owner of such paper, is nqt susceptible of being proceeded against as the res in an attachment suit; • for, though it belongs to the attachment defendant, it is not the debt of which it gives evidence, nor is it property beyond the value of the mere fabric. The third person having the note in his hands for collection is not the debtor of the defendant. The fact that he will be the
The levy upon the written evidence of a credit due the defendant, in the form of a note of hand found in the possession of the defendant, or of some bank or other-agent of his, instead of garnishing the creditor, who owes him the debt evidenced by the note, is not different in principle from the attachment of books of account instead of garnishing those who owe what the accounts show to be due the defendant. In the latter case it is held, “ that levy on the account-books is not a levy on the debts charged therein due by others to the defendant.” (Waples, Att., 167-170 ; Lesher v. Getman, 30 Minn. 321; Ide v. Harwood, 30 id. 191.)
If one creditor should attach the promissory note found in the possession of the debtor and another should attach the debt itself in the hands of the party owing the debt, by the process of garnishment, it would plainly appear that the first would have seized only the evidence of the indebtedness, while the second would have attached the debt, which would have created a lien. Which would have something susceptible of being proceeded against as the res in the ancillary proceeding? Certainly the creditor who had garnished the obligor would be the only attachee of the credit due to the defendant. (Prout v. Grout, 72 Ill. 456.) The other, having merely the evidence of the fact that the maker of the note owes the defendant, would have nothing attached which could be pro
"We do not hold that a note cannot be sold, but hold that if it is sold it must be under the provision of the code for the disposal of attached property, and an attempt must be first made to collect it; then, if not collectible, or if it has a long time to run, or from other circumstances that might arise which in the judgment of the court would make it for the best interests of all concerned to have it sold, it may be disposed of. ’ The views herein expressed are not in conflict with the decisions of our supreme court in Blain v. Irby, 25 Kan. 499 ; Irby v. Blain, 31 id. 716 ; Beamer v. Winter, 41 id. 596, to which our attention has been called. In the first-cited case the court decided that under the tax law a note was a chattel, and that under a tax-warrant the sheriff had the right to sell the same, but under the law governing the collection of. taxes there is no special provision as to the
In Beamer v. Winter, 41 Kan. 596, the court held that, when a note taken in garnishment was sold, it must be sold in the same township where seized. But we have been unable, after a careful search, to find where the supreme court has ever decided that a note taken' by garnishment process before due could be sold as other personal property. On the contrary, the weight of authority is against it. But, aside from all this, we think that it is the duty of a court to protect all parties to the action, and not allow the property of the defendant to be eaten up in costs, which, in this case, are shown to be unnecessary. No attempt was made to collect this note or to ascertain if it was collectible, but it was at once sold and purchased by the plaintiff in this action for the small price of $25, the note being for $200, with interest at 7 per cent., while the debt sued upon was less than the face of the note, being only for $189. The plaintiff did not deny, but on the contrary admitted, by its demurrer, that it received $207.70 on this note'in a very short time after it purchased it, on the very day it became due, and now it asks this court to say that, in addition to what it has already collected — which is more than the amount of the original indebtedness — it may recover from the debtor’s estate $207 ; in other words, to allow t lis plaintiff to recover $414 upon a judgment which
The judgment in this case will be reversed and a new trial ordered.