Woodward v. Witascheck

38 Kan. 760 | Kan. | 1888

The opinion of the court was delivered by

Johnston, J.:

The undertaking upon which a recovery is sought was not given by the defendant debtor, nor in his behalf. He did not own the property attached, had no interest in the attachment proceedings, and permitted judgment to be taken against him by default. Albert Witascheck interpleaded in the action, and claimed to be the owner of the goods which had been seized; and on this issue he obtained judgment in his' favor. This judgment and the one taken by default against Charles Witascheck had both been rendered a considerable time before the undertaking sued on was executed. The agreement of the parties executed at the same time with the undertaking, and appended to it, specifically states thatthe bond was executed under § 52 of the justices code, and shall be so treated and considered. That section provides:

“ 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 the 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.”

1. undertaking grven too late. Under this provision, the attached property may be released during the pendency of the action of attachment and before judgment is given. There is no authority, however^ iQ § 52 for the giving or acceptance of a bond after the attachment action has culminated in a judgment. It prescribes a method to be pursued during the pendency of the proceedings and before judgment is rendered. 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. After the attachment has been upheld and final judgment rendered, no necessity exists for the giving of such bond. It could be of no benefit to the defendant or party contesting for the property, and as we have seen, no authority exists for taking or approving it. The undertaking sued on could not have been taken with reference to the controversy between the plaintiff and Charles Witascheck,- for that judgment was entered seventeen days before the execution of the undertaking. If it was taken by plaintiffs with reference to the final result between themselves and the interpleader, they are in no better condition, for that judgment is against them. It is- true, the justice of the peace suspended, or undertook to suspend, the operation of that judgment for thirty days, in order that the plaintiffs might prepare a bill of exceptions on which to review his rulings in the district court. The undertaking was manifestly given upon the theory that a proceeding in error would be prosecuted, and as a security that the obligor would perform the final judgment in case of a reversal. But no proceeding in error or appeal was ever prosecuted, and there has been no reversal. The order suspending the judgment, whatever may have been its effect, was abrogated by the justice on July 8th,.thirty-two days after he adjudged the attachment to be invalid and that Albert Witascheck was the bona fide purchaser and owner of the property. That judgment stands as a final adjudication that the property belonged to Albert Witascheck at the time it was seized.

2. Bond; no consideration for execution. Therefore the plaintiffs had no right or interest in the property attached, and parted’ with nothing in exchange for the undertaking. Albert Witascheck received nothing by reason of the undertaking beyond what he was entitled to without it, and therefore there was no consideration tor its execution. If we consider the attachment as continued by the order of suspension, and that the undertaking was given as a substituted security for the property attached to await the final judgment thereon, still no liability could arise, because no judgment adverse to the obligor has been rendered. In no view of the case as it is presented here can the defendants be held liable, and the judgment of the district court must therefore be affirmed.

All the Justices concurring.