92 Kan. 286 | Kan. | 1914
This was an action upon an attachment bond to recover the damages sustained by reason of an unlawful attachment. The appellant The Van Arsdale-Osbome Brokerage Company caused an attachment to be issued against the property of the appellee, H. C. Parish, having previously given an attachment bond in the sum of $200, signed by C. G. Ricker as surety. The appellee had previously advertised. a public sale of his personal property at his residence, and on the day of the sale, and when a part of those who attended the sale had assembled, the sheriff appeared with the order of attachment, which it is alleged was levied upon appellee’s property. Instead of taking manual possession of the property or removing it from appellee’s place the sheriff arranged with appellee that the following bond should be given:
“State of Kansas, Woodson County, ss:
“Whereas, Van Arsdale-Osborne Bro. Co., has commenced a civil action against H. C. Parish in the District Court within and for said county and state; and whereas, an order of attachment has been issued in said action, and the property of the said H. C. Parish has been attached, and is now bound therefor, which property the sheriff of said county now returns to the said H. C. Parish defendant, in said action. Now, we, the undersigned, residents of said county, bind ourselves, to said plaintiff, in the sum of two hundred and no-100 dollars (being double the appraised value of said property) that said property or its appraised value in money shall be forthcoming to answer the judgment of said court in said action.”
This bond was signed by the appellee and another, was approved by the sheriff, and the sale proceeded; but there is testimony to the effect that the attachment proceedings became known to persons who attended the sale and others who contemplated attending it, with the result that the property was sold for much
It is contended that there was no actual levy of the attachment and that consequently there can bé no recourse upon the attachment bond for any damages that may have resulted from the action of the sheriff. The return of the sheriff, which included the forthcoming bond executed by the appellee and accepted by the sheriff, and which was set forth in appellee’s petition and not denied by appellant, recited that appellee’s property was seized and held under the order of attachment, and that the property was returned to appellee when the bond was given. It is not necessary to a valid levy that the officer should even touch the property or make a manual seizure of it. It is enough if he assumes control of it and exercises dominion over it. (Throop v. Maiden, 52 Kan. 258, 34 Pac. 801; 4 Cyc. 591.) The sheriff, who was acting at the instance of the appellant, in effect, says that he assumed control over the property prior to the execution of the bond by appellee. The recitals show that dominion over the property was exercised by the officer acting in behalf of the attaching plaintiff, and it was acknowledged by the owner of the property.. Other questions-might arise if the rights of a bona fide purchaser or a subsequent attaching creditor were involved, but the only parties to this controversy are the appellant, who caused the attachment to be issued, and the appellee, who owned the attached property, and as between them there is little room for controversy. There was no verified denial of the facts relating to the attachment,
There is complaint of the allowance of attorneys’ fees and the item for taking depositions as damages. The expense incurred in defending against an attachment wrongfully sued out may be allowed as damages in an action brought upon the attachment bond. In Sanford v. Willetts, 29 Kan. 647, it was held that the expense incurred and the value of the time expended in obtaining a release of property wrongfully attached constitute actual damages which are recoverable. In Tyler v. Safford, 31 Kan. 608, 3 Pac. 333, it was ruled that attorneys’ fees necessarily paid to free property from an unlawful attachment might be allowed, that the employment of nonresident attorneys was permissible, and that their traveling expenses between their home and the place of trial was a proper element of damages. It is argued, however, that the $50 item for attorneys’ fees as well as the $5 item paid to obtain a deposition should not be allowed because they were not incurred in obtaining a dissolution of the order of attachment, but were rather used upon the trial of the main case in which the order was issued. No preliminary motion was made to dissolve the attachment, but the question of whether there was a debt which was justly due was tested on the final trial, and it was then determined that there was no indebtedness, and consequently an order was made vacating and setting aside the attachment. To obtain the attachment the appellant made an affidavit that it had a claim against the appellee for a certain amount which was justly due. In order to establish that there was no basis for this claim and that the appellee was not
“The decision of the court in the attachment action, finding in favor of the plaintiff herein and dissolving the attachment, is conclusive proof that the attachment was unlawful. (Hoge v. Norton, 22 Kan. 874.) The plaintiff then had the right to proceed further and prove the nature of the wrongful acts and the extent of his damages therefrom.” (p. 585.)
It is further contended that the allowances made because of depreciation in the price of the animals and articles disposed of at the sale which was interrupted by the attachment are not proper elements of damage. It appears that appellee had advertised a sale of his personal property. About the time for the sale to begin, and when a large number of persons had assembled to attend the sale, the sheriff appeared with his attachment order. A-bond was taken, as has been stated, under section 200 of the civil code, providing that the property or its value should be forthcoming to answer the judgment in the action. According to the testimony, the sale was delayed for a few hours, and the effect of the attachment became a subject of discussion among the bidders present, and there was a fear that something was wrong about the sale. The news of the attachment deterred at .least one man from going to the sale who desired to purchase some of the
There were some objections to rulings made during the trial, but in none of them do we find any substantial error. The judgment of the district court will be affirmed.