Washer v. Campbell

40 Kan. 398 | Kan. | 1888

The opinion of the court was delivered by

VALENTINE, J.:

This was an action brought in the district court of Atchison county, on a certain bond, given before that time, in a certain case pending at the time of the giving of the bond in a justice’s court, and given for the purpose and having the effect of releasing and discharging all the garnishment proceedings pending at the time of the giving of the bond in the justice’s court. The bond was not given under §42 of the justices act, for the following reasons: 1. It was given before any one of the garnishees answered, and it had the effect to relieve them from answering. 2. It was given before any order was made by the justice with reference to such proceedings, and it had the effect to prevent the making of any such order. 3. And the bond provided,-not for the payment or delivery of the money or property then in the hands of the garnishees and belonging to the defendants, but it provided for the payment of- any judgment which might be rendered against Edward Kiddle, one of the defendants, on the final hearing of the case. Neither party claims, nor has even suggested, that the bond sued on was given under §52 of the justices act, and yet it is very similar to the undertaking provided for by that section. It is so nearly like the undertaking provided for by that section, that it will be proper and perhaps necessary that we should construe, a portion of that section. The substance of the undertaking provided for by that section is “to the effect that the defendant shall perform the judgment of the j ustice; ” and by giving the undertaking, the attachment and garnishment proceedings are all absolutely discharged. Now under the undertaking above provided for, is the defendant in all cases bound to. literally perform the judgment of the justice, and is he in all cases at liberty to utterly refuse to perform anything and everything else? If the judgment should be erroneously rendered against him, and if he should believe it to be outrageously erroneous, must he nevertheless perform it, or may he not appeal to the district court ? And if he may appeal, and does appeal, then what judgment would he be required to perform? Would the parties to the undertaking be bound to see that he performed the judgment rendered by the justice notwithstanding his appeal ? By the appeal and the subsequent rendering of a judgment in the district court, either for or against the defendant, the judgment of the justice would be swept out of existence, and only that of the district court would remain or have any force. And must the defendant perform that judgment? And if he does, or if it should be rendered in his favor, would the parties to the undertaking still be required to see that the judgment rendered by the justice should be performed ? But the judgment of the justice might, on the other hand, be rendered in favor of the defendant, and might erroneously be so rendered : then may not the plaintiff appeal ? And if the plaintiff should appeal and a judgment be rendered in the district court in his favor, then what judgment would the defendant be required to perform? Would he not be required to perform the judgment rendered in the district court ? If not, then the plaintiff would have no security whatever. The plaintiff loses his security founded on his attachment and garnishment proceedings by the defendant’s giving the undertaking, and if the undertaking is no security after the appeal is taken, then the plaintiff has no security after that time. It would certainly seem like injustice that the defendant by giving the undertaking, and by substituting it for the attachment and garnishment proceedings, should procure the discharge of the attachment and garnishment proceedings, and then by obtaining a wrongful judgment in the justice’s court should deprive the plaintiff of all security. Suppose the justice, after rendering the judgment, should grant a new trial: what then? Would it not place the parties and their rights back just where they were before the judgment was rendered ? And an appeal does about the same thing. And it does more. It permits the district court to try the case again and to render just such a judgment as the justice should have rendered. And the rights of the parties would be just the same as though the J^arnMime3r obSgoifiouna justice had rendered the judgment. We are in-dined to think that when a judgment is finally rendered in the district court on an appeal from a justice of the peace, such judgment has all the force and effect that it would have if it had been rendered by the justice. The district court takes the place of the justice, and its judgment is virtually the justice’s judgment. In the case of Woodward v. Witascheck, 38 Kas. 760, 763, it is said that—

“The undertaking provided by that section is a substitute for the property attached; and in the event that the attachment is sustained and judgment given in favor of the plaintiff, he looks to the undertaking instead of to the property which was seized. The giving of the undertaking operates to discharge the attachment and the liability of any garnishee, and to restore the property to the defendant.”

The bond, however, given in the present case uses stronger language than the foregoing section does, or than the undertaking provided for by that section need to do. It provides that the obligor shall “pay any judgment which may be rendered against him [the defendant] on final hearing of this case.” Of course a judgment rendered before a justice of the peace and not appealed from is a final judgment, and the hearing that results in the rendering of such a judgment is a final hearing. But if an appeal be taken from the judgment of the justice, then such hearing and such judgment would not be final, but the only “final hearing of the case” and the only final judgment rendered in the case would be the final judgment had and the final judgment rendered in the district court. The language of the bond in the present case would naturally mean the judgment rendered on the final hearing of the case, iu whatever court the case might be when such final hearing should be had. Such a hearing would in fact be the only “ final hearing of the case.” What we have said in construing § 52 of the justices act will apply with equal or greater force in construing the language of the bond sued on in the present case. As before stated, the language of the bond is much stronger in support of the views herein expressed than the language of the section, and therefore it is clearer that these views are correct with reference to the bond than with reference to the section.

If the foregoing views are correct, and we think they are, then the judgment of the district court in this present action on the bond is correct. We think it is correct, and it will be affirmed.

All the Justices concurring.