Baker Mfg. Co. v. Fisher

• Decision Date: 07 October 1886
• Citation: 35 Kan. 659,12 P. 20
• Parties: THE BAKER MANUFACTURING COMPANY v. J. W. FISHER, et al
• Court: Kansas Supreme Court

12 P. 20

35 Kan. 659

THE BAKER MANUFACTURING COMPANY v. J. W. FISHER, et al

Supreme Court of Kansas

October 7, 1886

Error from Sumner District Court.

ON March 16, 1882, The Baker Manufacturing Company brought its action against G. W. Knotts and H. Wallace, partners as Knotts & Wallace, for the recovery of two thousand and nine dollars and sixty cents, upon an account for goods wares and merchandise. Summons was issued and the defendants were legally served. At the issuance of the summons, an order of arrest was issued in the case, and thereon G. W. Knotts was arrested and held in custody until the execution of a bail-bond, signed by himself and L. H. Fisher, W. O. Barnett E. L. Brown, J. W. Fisher, and J. R. Messerly, as sureties thereupon Knotts was released. On March 22, 1882, the order of arrest was vacated and set aside by the judge of the district court, on account of the alleged insufficiency of the affidavit upon which the order was issued. The judge refused to allow the plaintiff to amend the affidavit, and this ruling was excepted to. The case was then brought to this court by a proceeding in error, and the ruling of the district judge reversed. This court held "that the judge had power to permit the amendment, and under the circumstances ought to have done so; for the affidavit, if not sufficient, certainly showed dishonesty on the part of the defendants." (Baker Mfg. Co. v. Knotts, 30 Kan 356.)

On April 8, 1882, the plaintiff recovered judgment against Knotts & Wallace for the sum of two thousand and seventeen dollars and twenty-four cents, and also for $ 28.28 costs. On September 29, 1883, in pursuance of the mandate of this court, and by leave of the district court, plaintiff filed an amended affidavit for an order of arrest. On October 5, 1883, the plaintiff sued out an execution upon the judgment, against the person of G. W. Knotts, directed to the sheriff of Sumner county. On November 30, 1883, the sheriff made return upon this order, that he was unable to find Knotts within his county. The amount due upon the judgment at the commencement of this action was two thousand and seventeen dollars and twenty-four cents, with interest from April 8, 1882, at seven per cent. per annum, and costs.

The bail-bond is in words and figures as follows:

"Know all men by these presents, that G. W. Knotts, as principal, -- as sureties, are held and firmly bound unto the Baker Manufacturing Company in the full sum of four thousand nineteen and 20-100 dollars, to the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators and assigns, forever. The condition of the above obligation is such, that whereas, the above Baker Manufacturing Company has begun a civil action in the district court of Sumner county, Kansas, against the firm of Knotts & Wallace, for the sum of two thousand and nine and 60-100 dollars; and whereas, the Baker Manufacturing Company has filed its affidavit charging the said Knotts & Wallace with fraud in disposing of their goods and merchandise; and whereas, the above-bounden G. W. Knotts, (member of the firm of said firm Knotts & Wallace,) has been arrested under an order of arrest issued by the clerk of said district court: now, therefore, if judgment shall be rendered in said action against said Knotts & Wallace, said G. W. Knotts will render himself amenable to the process of said court, then and in that event, this obligation shall be null and void; otherwise to remain in full force and effect in law.

Witness our hands, this 16th day of March, 1882: G. W. Knotts, L. H. Fisher, E. L. Brown, J. W. Fisher, W. O. Barnett, J. R. Messerly.

"Approved March 17, 1882.

J. M. THRALLS, Sheriff."

The plaintiff brought its action to recover upon this bond setting up all the foregoing facts. To its petition the defendants filed a demurrer, alleging that the same did not state facts sufficient to constitute a cause...