14 Kan. 504 | Kan. | 1875
The opinion of the court was delivered by
“ If the defendant, or other person in his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff by one or more sureties, resident in the county, to be approved by the justice, in double the amount of the plaintiff’s claim, to be stated in his affidavit, to the effect that the defendant shall perform the judgment of the justice, the attachment in such action shall be discharged, and restitution made of any property taken under it, or the proceeds thereof. Such undertaking shall also discharge the liability of a garnishee in such action, for any property of the defendant in his hands.” (Gen. Stat., 787.)
Section 213 of the civil code is precisely like the foregoing section of the justices act, except the words which we have put in italics are changed as follows: “in” is changed to “on;” “justice” is changed in two places to “court;” and “to be” is changed to “as.” The appeal bond, where the defendant appeals, is in spirit substantially the same as the bond mentioned in’the foregoing sections. Section 121 of the justices act provides that —
“The party appealing shall, within ten days from rendition of the judgment, enter into an undertaking to the adverse party with at least one good and sufficient surety, to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs, conditioned, jirst, that the appellant will prosecute his appeal to effect, and without unnecessary delay; second, that if judgment be rendered against him on the appeal, he will satisfy such judgment and costs. Such undertaking need not be signed by the appellant.” (Gen. Stat., 800.)
Now as the defendant who appeals gives ample security for the prosecution of his appeal to effect, and for the payment of any judgment that may be rendered against him, it would seem to be hardly necessary that the attachment should continue any longer in force. And as no provision is made by law for the officer who holds the attached property at the time the appeal is taken to turn the property over to some officer of the district court, it would hardly seem that it was
It has been held in this court that where a justice has discharged the attachment, and the plaintiff has appealed by filing an ordinary appeal bond, the attachment is not thereby taken to the district court: (Gates v. Sanders, 13 Kas., 411.) The proceedings of the district court with regard to the attachment issued in this case will appear from the following quotations from the record brought this court:
“Be it remembered, that on the call of the above (case) action for trial, defendant called up the motion to discharge attachment made in the court below, and read the said motion and affidavit of IT C. Hawkins as follows:” [Here follows motion and affidavit of Hawhins.'] “No motion was made in this court to discharge attachment. The defendant then read the following notice of filing counter-affidavits[Here follows notice;] “ and tendered and offered to read the affidavits of L. D. Suthill and E. H. Saville filed in said action in this court, which affidavits are in the following words:” [Here folloio affidavits of Suthill and, Saville.] “ But the court refused to hear the affidavits; read and overruled the motion, which order is in the following words and figures:
“(Title, &c.) The motion of said defendant to discharge attachment in' this case being argued by counsel, the court upon due consideration overruled said motion, to which defendant duly excepted. To all of said rulings of the court, in refusing to hear the affidavits read, to discharge, and in disallowing said motion, the defendant then and there duly excepted.”
The parties then proceeded with the trial, and the court at the close of the trial rendered judgment in the following words, to-wit:
“ It is therefore considered, ordered and adjudged by the court here, that the said plaintiff have and recover of and*508 from the said defendant the said sum of $112.20, and interest as aforesaid, and also his costs in and about this suit expended, taxed at $-, and that execution issue therefor. To all of which the defendant then and there excepted.”
The judgment will be affirmed.