Robinson v. Burton

5 Kan. 293 | Kan. | 1870

By the Court,

Valentine, J.

This cause was before us upon another question at the last term of this court. It was then brought before us by the defendant, to reverse an order of the district court, that refused to dissolve the attachment, but continued it in force, and allowed the plaintiff to amend her original affidavit within ten days after the adjournment of the court. We sustained the action of the district court. See Burton v. Robinson, ante, p. 287.

The plaintiff amended her original affidavit by filing an amended affidavit within the ten days prescribed by the district court. At the next term of the district court the defendant again moved the court to dissolve the attachment for defects which the amended affidavit did not cure. The court ssutained his motion and dissolved the attachment, and the plaintiff now .brings the case to this court to reverse said order of the -district court on said motion.

ATTACHaiENT: Affidavit. That the original affidavit was defective there scarceiy room for any .doubt. It does not sufficiently show the nature of the plaintiff’s claims, or at least of the third, fourth and fifth claims. [Sub. 1, § 200, Comp. L., 155; Drake on Attachment, § 96, 104.] It is difficult to understand as to these claims, last mentioned, whether they are founded upon torts or upon contract; and if they are founded upon torts, the affidavit is open to the further objection that it does not state that the causes of action upon which these claims are founded arose wholly within the limits of this state. § 1, Laws of 1866, 182.

As to claims numbered 8, 4, 5 and 6, the affidavit does not sufficiently show the amount, which the affiant believes the plaintiff ought to recover. Sub. 3, § 2Q0, Comp. L., 155.

The court below decides that the affidavit does not sufficiently show that the plaintiff’s claims are just. [Sub. 2, § 200, Comp. L., 155.] All that the affidavit states upon this subject, as to claims numbered 1 and 2, is as follows: It states that the plaintiff “ ought justly to recover the amounts thereof;” and near the close of the affidavit it states generally as to all the claims, six in number, “that the several sums claimed by the plaintiff ar& justly due.” That this is manifestly an informal way of stating the matter will be readily admitted, but whether this informality renders the affidavit insufficient is not so obvious. It is probably not such a defect as would authorize the court to arbitrarily dissolve the attachment without first giving the plaintiff ample opportunity to amend her affidavit. It is even probable that the defect is not so fatal, that this court would hold the affidavit insufficient if the district court had held it sufficient. We think, however, it is such a defect as would authorize the district court to require the plaintiff to amend the affidavit so as to make the statement more formal and definite. Probably no one will contend that the affidavit should follow the exact language of the statute, but when it differs from the statute without any apparent reason therefor, courts will be justified in requiring that the reason be made obvious, or that the affidavit be so amended as to conform to the statute. The statute requires that the affidavit shall show, “ First, the nature of the plaintiff’s claim; Second, that it is just; Third, the amount which the affiant believes the plaintiff ought to recover; and, Fourth, the existence of some one of the grounds for an attachment,” [§ 200, Comp. L., 155;] which grounds are enumerated in another section of the statutes. § 1, Laws of 1866, 182.

The words just and justly, do not always mean just and justly, in a moral sense, but they not unfrequently in their connection with other words in a sentence, bear a very different signification. It is evident, however, that the word “just” in the statute, means just in a moral sense; and from its isolation, being made a separate subdivision of the section, it is intended to mean morally just, in the most emphatic terms. The claim must be morally just, as well as legally just, in order to entitle a party to an attachment. If the claim is morálly unjust, but, notwithstanding, the owner thereof thinks he can legally recover the same by an action at law, provided he can obtain an attachment, and not' otherwise, it is but natural, or at least the temptation is great, for him to try to make a compromise between his conscience and the rigid language of this austere statute, and so frame the language of his affidavit as not to do any great violence to either his conscience or the statute. He may think that it is easier to swear that the claim is justly due than to swear that it is morally just without any reference as to whether it is due or not, and where there are six different claims as in this case, some of which may be just and some of them unjust, he may think that it is easier to swear that the several sums claimed by the plaintiff are justly due than to swear to each claim separately that it is just. If he has a legal right to recover an unjust claim for say $100, he may think that it is easier to swear that he “ ought justly to recover that amount,” than to swear that the claim is just without any reference whatever as to his legal right to recover the sum of $100, or any other specific amount. In the one case his attention is called more particularly to the question whether the claim is due or not, and not to the question whether it is just. In the other case his attention is called more particularly to the question, what is the amount of the claim ? and not is it just? Whenever there seems to be a disposition to evade the moral force of the statute by departing from its language or by inserting foreign or irrelevant matter wbicb tbe statute has intentionally excluded, or by swearing to two propositions in tbe aggregate wbicb tbe statue-requires to be sworn to separately, or by swearing to tbe justness of tbe claim only inferentially, wben tbe statute requires that it be sworn to positively, whenever there seems to be a studied effort to evade swearing to tbe bold and naked proposition that tbe claim is just in tbe abstract as well as in tbe concrete, there seems to be an eminent propriety in tbe court requiring that tbe language of tbe statute be strictly complied with, and particularly so wben the hatures of tbe claims themselves are not fully set forth. Wben tbe claims appear to be stale and probably barred by tbe statute of limitations, and wben there seems to be an effort to convert a tort into a contract, so that it may be united in tbe action with other claims founded on contract, wben all this appears, and wben it is remembered with what facility ex parte affidavits are obtained, no one will censure tbe court for requiring with such great exactness tbe scrupulous fulfillment of tbe statute. Of course cases might arise, and probably do arise, in which tbe court would not be justified in being so scrupulously exact. We would refer to tbe following authorities upon this point: Drake on Attachment, 3 Ed., § 95; Worthington v. Carey, 1 Metc., Ky., 470; Taylor v. Smith, 17 Ben. Monroe, 536, 542; Constable v. White, 1 Handy, 44.

Dissolution of Attachment. Where tbe affidavit is clearly insufficient, as many respects, it is undoubtedly tbe duty of tbe court upon motion of tbe defendant, to dissolve tbe attachment, unless tbe plaintiff shall within a reasonable time, to be fixed by tbe court, make tbe affidavit sufficient by amendment, and where tbe affidavit is informal only, as this is, in not stating positively, but only inferentially, that the claim is just, the court may in its discretion, upon motion of the defendant, require by order, that the affidavit be made formal by amendment. And the court having made such order it undoubtedly has the power and the right to enforce the same, even to the dissolving of the attachment.

Amended: Affidavit. And now, turning our attention to the amended affidavit, we would say that it is also undoubtedly defective in not relating back to the time of filing the original affidavit. [Drake on Attachment, 3d Ed., § 113; Crouch v. Crouch, 9 Iowa, 269, 271; Wadsworth v. Cheeney, 10 id., 257, 259.] It cures no defect of the. original affidavit, except that it states more clearly the nature of the plaintiff’s claims. Its material averments are all in the present tense. It affirms that each of the plaintiff’s claims is just, but it does not show that said claims were just at the time the original affidavit was filed. It affirms the amount which the affiant believes the plaintiff ought to recover at the time when she makes the amended affidavit, but not at the time when she made the original affidavit.

An amended affidavit cannot be, for the purpose of showing that the plaintiff has good grounds for an attachment at the time of making the same, but for the purpose of showing that the plaintiff had good grounds for an attachment at the time the original affidavit was made. The object is not to obtain a new order of attachment, but to sustain one already issued. It is not to show that one might then rightly issue, but to show that the one already issued was not wrongfully sued out.

After it was determined in the court below that the amended affidavit was insufficient, that it did not cure the defects in the original affidavit, the plaintiff again asked leave to amend her affidavit, but the court refused, and dissolved the attachment. That the court might, in its discretion, have again allowed the plaintiff to amend her affidavit, we have no doubt; but that the court was bound to do so, presents a very different question. No reason is given why the plaintiff failed to amend her affidavit in accordance with the decision and order of the court at its last term. Probably no valid or sufficient reason could be given therefor. If it could, and if the plaintiff desired to claim a second indulgence from the court, why did she not show such reason to the court by affidavit or otherwise?' A court in the exercise of its discretion ought always to be sufficiently liberal so as to do justice between the parties, and at the same time ought to be sufficiently rigid so as to make its orders to be respected. Whether justice would have been better promoted if the court had allowed the plaintiff to amend her affidavit a second time, we are unable to say; but that the court did not abuse its discretion, we think it scarcely doubtful, and that the court took the proper course to make its orders respected, we think is beyond all doubt.

The decision and order of the district court must be affirmed.

All the justices concurring.