2 Kan. 227 | Kan. | 1863
Lead Opinion
By the Court,
This was an action brought by the plaintiff in error against the defendants in error in the District Court of Douglas County, to recover of the defendants in exTor the sum of $3,816 and interest thereon due on a promissory note givexx by defendants to the plaintiff.
The petition is in the usual form and at the time of the commencement of the action, the plaintiff obtained an or
The ground of the attachment was a fraudulent disposition of the property of the defendants, with intent to defraud their creditors and the plaintiff in particular, and is stated in the affidavit in positive terms, and also supported by a statement of facts positively set forth.
At the first term of the Court the defendants moved to vacate the order of attachment, which motion was sustained and an order made discharging the attachment, to which the plaintiff excepted, and brings a petition in error to this Court to reverse said order.
Defendants claim that the order of the Court below discharging the attachment, was correct, because 1st, the affidavit is insufficient, and 2d, because the Clerk had no power to issue such an order. If either of these positions are well taken, then the action of the Court was correct, and will not be disturbed. The affidavit states that the affiant is the lawful authorized agent of the plaintiff, that the defendants are indebted to the plaintiff on a promissory note for the sum of $3,816.47 and interest thereon at the rate of 2-J per cent, per month, from the 11th day of May 1859, the date of said note, the same having been given by the defendants to the plaintiff as the payee thereof; that said note is due and wholly unpaid, and is just; that the plaintiff ought to recover of the said defendants the aforesaid sum of money, with interest thereon as stated; that the said defendants have disposed of their property or a part thereof with intent to defraud their creditors, and the plaintiff in particular.
The affidavit then proceeds at length to state the facts upon which the affiant relies to show a fraudulent disposition of defendants property.
¥e have carefully examined this statement of facts and think if true they would convince any sane mind that the
"We do not propose, however, to comment upon the detailed statement as we are clear both upon reason and authority, that the ground of an attachment may be stated in the affidavit in the language of the Statute, without specifying more particularly the facts intended to be alleged. This the plaintiff did, and the facts and circumstances which he stated, upon which the alleged grounds of attachment are founded, need not have been stated, and can only be considered and held as surplusage.
This, principle is now so well settled by authority as to render it unnecessary to discuss it. See Carson v. Page, 9 Ohio, 8. 897; Harrison & Wiley v. King & Casey, id. 388 ; 17 B. Monroe, 542 ; 18 id. 632 ; 13 Howard,, 348.
There was at first some difference of practice under the Code as to what construction should be placed upon the Section, but the more reasonable course .of requiring the party seeking the benefit of an attachment only to state the ground in the Statutes seems now to be adopted as the general rule of proceeding, and of the propriety of this rule we have no doubt.
' It will be readily seen that this ruling as to the sufficiency of the affidavit disposes of the other alleged error. If the granting of an order of attachment is a ministerial act, then the duty may well be confided to the Clerk where the law had placed that duty, and granting it on an affidavit in which the grounds are positively stated, is a ministerial and not a judicial act, and not in conflict with the 27th Section of the Organic Act.
It will readily be granted that the making of an order of attachment on an affidavit in which the grounds are stated and followed by a statement of facts and circumstances showing the truth of the averment, imposes upon the officer granting it a judicial duty, if it is necessary for him to examine and weigh the detailed statements, arid the act
By giving to Section 199 of the Code the construction we have placed upon it, makes Section 200 valid and operative, giving it the reverse construction, and Section 200 becomes inoperative, and a well devised remedy given by the Legislature is totally destroyed. Such a construction ought to be given to a law, if it will reasonably admit of it as will not suffer it to be defeated. 15 Johnson, 358; 1 Cowen, 550.
By following well established authorities in holding the affidavit sufficient when it avers facts in the language of the law, the act of granting attachments becomes ministerial and properly performed by the Clerk, and the remedy given by law, as well as the Organic Act upheld.
We therefore think that the Court erred in vacating the attachment. The plaintiff in error alleges several other errors in the ruling of the Court, but they are all of a character that cannot be acted on by this Court until the case is-finally disposed of, and as it is still pending and undetermined, those errors will not be considered.
The case is remanded to the District Court of Douglas County, with directions to reinstate the attachment and for further proceedings.
Concurrence Opinion
concurring.
This case having been argued and submitted at a term before Cobb C. J., took his seat on the bench, he took no part in the decision.
