Adams v. Lockwood

• Decision Date: 01 July 1883
• Court: Kansas Supreme Court
• Parties: MRS. E. ADAMS, et al., v. LOCKWOOD, ENGLEHART & CO

2 P. 626

30 Kan. 373

MRS. E. ADAMS, et al., v. LOCKWOOD, ENGLEHART & CO

Supreme Court of Kansas

July 1, 1883

Error from Clay District Court.

ACTION by Lockwood, Englehart & Co. against Adams and another to recover on three notes. At the January Term, 1883, of the district court, plaintiffs had judgment for $ 258.65 and costs against defendants. They bring this judgment, and also the overruling of their motion to discharge the attachment in the action, to this court for review. The opinion states the facts.

Judgment affirmed.

J. S Walker, and Harkness & Godard, for plaintiffs in error.

Miller & Blake, for defendants in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

This was an action on three notes, in connection with which were certain attachment proceedings. So far as any question is presented as to the petition, the ruling of the district court will be affirmed, on the authority of Ambrose v. Parrott, 28 Kan. 693. A motion was made to discharge the attachment, which was overruled. After it had been overruled, defendants filed a second motion to discharge the attachment upon different grounds. This motion was filed apparently without any leave of the court. Upon a hearing it was also overruled, and of these rulings defendants now complain. As this second motion was filed without leave of the court, it might properly have been disregarded. None of the grounds stated in it could by any pretense be called new matter; that is, facts arising since the decision of the first motion. A party has no right to trouble the court or annoy the opposite party by successive motions seeking the same relief, even though he bases them upon different grounds. He must include everything in the first motion, and can only file a second motion upon leave of the court, which will be rarely granted, and then only where justice seems manifestly to require it. (Freeman on Judgments, §§ 325, 326.) So that if the court had disregarded the second motion, there would be no error.

However we see nothing in any of the six grounds stated in the two motions, which calls for a reversal of the rulings of the district court. The only matter we think of sufficient importance to require notice, which is not already covered by prior rulings of this court, (see especially Ferguson v. Smith, 10 Kan. 396,) is the time intervening between the making of the affidavit and the commencement of the action. The affidavit was made October 31, and the petition and affidavit were filed and summons issued on November 18, following. The affidavit charged, among other things, that the defendants had assigned, disposed of and removed their property, or a part thereof, with intent to defraud, hinder and delay their creditors, and also that they fraudulently contracted the debt. Now it is doubtless true, as counsel for plaintiff in error claim, that the ground for attachment must be true at the...