13 Kan. 362 | Kan. | 1874
The opinion of the court was delivered by
In this action an order of attachment was issued. The defendant moved the court to set aside and vacate said order, on the following grounds, to-wit: “ lst.-It was issued at the commencement of the action, and the return-day thereof is not the same as that of the summons. 2d.-The return-day of the order appears on its face to have been altered after the issuing thereof. 3d.-There is no proof of service or return of the order. 4th.-The affidavit on which the order is based is insufficient in not showing the specifications required by the statute for the issuing of the order. 5th.-There has been no publication, nor commencement of action. Said motion will be based upon the papers in the action.” The motion came on to be heard upon the papers in the case. “And thereupon the plaintiff, by her attorney F. A. Bettis,
The action seems to have been commenced on the 25th of September, 1872. Both the summons and the order of attachment were issued on that day. The only irregularities appearing in the record of the proceedings are as follows: The petition is marked “Filed September 28th, 1872;” and the return-day of the order of attachment is October 15th, 1872, while that of the summons is October 5th, 1872. From the other evidence contained in the record we must consider the marking of the petition as filed “September 28th,” a clerical mistake. It should have been marked filed September 25th. No action can be commenced except by filing a petition. And no summons or order of attachment can be issued except at the time of, or after the commencement of an action. Section 57 of the code provides that “A civil action may be commenced in a court of record, 'by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.” (Gen. Stat., 640, 641.) Section 190 of the code provides that “The plaintiff in a civil action for the recovery of money, may at or after the commencement thereof, have an attachment,” etc. (Laws of 1870, page 171, §4.) Now the presumptions of law are always in favor of the regularity of the proceedings of a public officer, and it is much less probable that the clerk of the district court in this case should have made a mistake in issuing a summons and order of attachment before any suit was commenced, than that he should have made a mistake in marking the time of filing the petition. It is scarcely possible that the clerk could have issued