Wm. W. Kendall Boot & Shoe Co. v. August

51 Kan. 53 | Kan. | 1893

The opinion of the court was delivered by

Johnston, J.:

For several years prior to January 1, 1890, Eli J. August was engaged in the sale of boots and shoes at Atchison, and to quite an extent on borrowed capital. He had two business houses, which are spoken of as the “uptown” and “down-town” stores. In December, 1889, he became financially embarrassed, and unable to meet the accruing claims of creditors. On December 30, 1889, he sold and delivered to his father, Jacob August, his uptown store, to satisfy certain claims which his father held against him: and on January 1, 1890, he executed two mortgages on his other stock of goods to certain creditors which he preferred, and also a third mortgage to all the remaining creditors. The last-named creditors did not choose to rely on the mortgage executed in their favor, and many of them caused attachments to be issued and levied on the two stocks of goods, and notices of garnishment were also -served on Jacob August and the preferred creditors. To prevent further attachments, and to protect and preserve his property to the creditors secured by the third mortgage, on January 6, 1890, he made a general assignment of his property or the benefit of all his creditors, and designated J. P. Adams as assignee, who afterwards was duly appointed permanent assignee by the court. The attaching creditors, 14 in number, continued to press their claims to the property, and motions to discharge the several orders of attachment and garnishment, and to discharge the garnishee, were made by Eli J. August, Jacob August, and the assignee.

On February 10, 1890, and by agreement of the parties, all of the motions were heard on the same evidence, and the court was to make conclusions of fact and law in one set, which were to apply to all cases. The court reached the conclusions that the sale of the stock of goods to Jacob August was made in good faith, and that the three chattel mortgages which have been mentioned, were made in good faith and were valid, and ordered that the attachments and garnishments in the several causes should be dissolved and discharged. Eleven of the creditors joined in bringing this proceeding in error, asking for a reversal of the orders made by the district court, but all of them have abandoned the case except the ¥m. W. Kendall Boot and Shoe Company. The claim of this company was $737.75, and its attachment was levied upon the uptown store, which had been transferred to Jacob August. The only motion to discharge the attachment in the Kendall case was made by Jacob August. No affidavit denying the grounds of attachment was made or filed by Jacob August, and it is insisted that, until an affidavit denying the grounds for attachment was made, there was no issue to try. There can be no question as to the right of Jacob August to ask for a discharge of the property. It was found by the court, and upon sufficient evidence, that the goods purchased by him were not worth any more than the price paid for the same, and that the sale was valid. As owner of the property and interested in discharging it from the attachment, he was authorized to move the court to discharge the attachment levied upon his property. (Civil Code, § 532 • Long v. Murphy, 27 Kas. 381.)

There is nothing substantial in the objection that the motion of Jacob August to discharge the attachment was not accompanied by an affidavit denying the grounds laid for attachment. Proof was offered by both parties as if the allegations of the affidavit for attachment were in issue, and this was received and acted upon by the court as if an issue had been properly formed. But was not the procedure adopted sufficient under the statute? The motion for the discharge of the attachment contained an explicit denial of the truth of the allegations in plaintiff’s affidavit for attachment. The procedure to raise the issue of fact varies in the different states: in some it is by plea in abatement; in others by supersedeas; and in still others by motion. The only procedure prescribed in this state for the discharge of an attachment is by motion and upon reasonable notice. (Civil Code, § 528.) No affidavit or verification of the motion is required by the statute; nor has it ever been held that the filing of an affidavit or the verification of the motion was essential to the raising of an issue. It has been determined that where such an affidavit is filed the burden of proof is placed upon the plaintiff to establish the grounds laid for attachment. (McPike v. Atwell, 34 Kas. 142; Grocery Co. v. Records, 40 id. 119.) The statute contemplates that such an issue shall be raised in a summary way, and, in the absence of a specific provision making an affidavit essential to the forming of an issue, none can be required.

Another objection is, that after Jacob August had filed his motion to discharge the attachment, and on January 14,1890, he began an action of replevin against John H. Barry, and the attached property was delivered to him under the writ issued in that action. • The suit was not brought against Barry in any official capacity, but probably he had obtained possession of the goods as sheriff, under orders of attachment. We see nothing inconsistent in the two proceedings. The motion of August to discharge, as has been seen, was a proper remedy to release property from an unwarranted attachment; but his action in that regard is no reason why he may not avail himself of the more complete remedy of replevin, to try the title and ownership of the property. (White-Crow v. White-Wing, 3 Kas. 276; Watson v. Jackson, 24 id. 442.) The property had been attached before the action of replevin was commenced, and some disposition of that attachment was necessary. Even the determination of where the costs of the attachment proceeding should be assessed required an examination and decision of the issues formed by the motion. The claim of ownership made by Jacob August in the action of replevin is in no sense an admission of the validity of the attachment, as in both proceedings he asserts ownership in himself.

We see no error in the rulings of the court, and hence there must be an affirmance of its judgment.

All the Justices concurring.