Bogle v. Gordon

• Decision Date: 07 April 1888
• Citation: 17 P. 857,39 Kan. 31
• Parties: A. C. BOGLE v. JOHN C. GORDON
• Court: Kansas Supreme Court

17 P. 857

39 Kan. 31

A. C. BOGLE v. JOHN C. GORDON

Supreme Court of Kansas

April 7, 1888

Error from Allen District Court.

ACTION by Gordon against Bogle, to recover money. Trial at the March term, 1886, and judgment for the plaintiff for $ 97.50 and costs. The defendant brings the case to this court. The opinion states the facts.

Judgment affirmed.

H. A Ewing, for plaintiff in error.

Knight & Foust, for defendant in error.

HOLT C. All Justices concurring.

OPINION

HOLT, C.

On February 20, 1883, A. C. Bogle and J C Gordon, two young attorneys at Iola, Kansas, formed a copartnership, which was dissolved by mutual consent in October of the same year. At the time of the dissolution, two cases against the St Louis Ft. Scott & Wichita Railroad Company, for damages, were undisposed of; all other business of the firm was settled. A. C. Bogle afterward obtained fees to the amount of $ 200 for services in these cases, and then left Kansas for Mississippi. J. C. Gordon brought this action to recover one-half of the amount of the fees collected, and on February 9th, 1885, attached some personal property of defendant in Allen county. A summons was issued, which was returned without personal service. In April following, the plaintiff made the following affidavit for publication:

"STATE OF KANSAS, COUNTY OF ALLEN, ss.-- John C. Gordon, the plaintiff herein, being duly sworn, says: That A. C. Bogle, the defendant in the above-entitled action, resides out of the state of Kansas and is a non-resident thereof; further says, service of a summons cannot be made on him within the state of Kansas, and that defendant has property within this state sought to be taken by attachment in this action, a provisional remedy."

The defendant appeared specially to set aside the service. He claims that the affidavit does not show that the case is one of those mentioned in § 72 of the civil code. We think it does. That section provides that publication may be made in actions against non-residents of the state, having in this state property or debts owing them sought to be taken by any of the provisional remedies. Attachment is one of the provisional remedies, and the affidavit follows almost exactly the words of the statute. It is not necessary that the affidavit should state that a cause of action exists against the defendant, as is required by the statutes of some of the states. (Gillespie v. Thomas, 23 Kan. 138.)

The defendant makes another objection to the affidavit: that it does not relate back to the commencement of the action. We do not think that is essential. If service was not made at the time the petition was filed, and is made afterward when the facts authorize such an affidavit, it is sufficient to state the parties are non-residents of the state at the time the affidavit for publication was made.

The original petition filed in this action was very crude and defective, and afterward several amended petitions were filed. The defendant claims that the petition upon which this case was tried was so unlike the original, that it is not an amended one. To understand his objection, it will be necessary to state more at length the facts upon which this cause arose. There was no question of the partnership; of the dissolution; the collection of the $ 200, and that two cases were undisposed of; but there is a wide difference in the testimony of the parties concerning the agreement about the fees in these cases. The defendant claims that he was to prosecute them or compromise them, and was to have whatever he collected as fees for his services; Gordon contends that the fees to be collected were to be divided equally between them. The first petition states that defendant was owing the plaintiff the sum of $ 100, money collected by the defendant for the plaintiff, which the said defendant refused to pay over to plaintif...