Bradley v. Byerley

• Decision Date: 01 October 1895
• Docket Number: 34
• Citation: 3 Kan.App. 357,42 P. 930
• Parties: C. T. BRADLEY et al. v. E. M. BYERLEY et al
• Court: Kansas Court of Appeals

42 P. 930

3 Kan.App. 357

C. T. BRADLEY et al. v. E. M. BYERLEY et al

No. 34

Court of Appeals of Kansas, Southern Department, Central Division

October 1, 1895

Opinion Filed December 7, 1895.

MEMORANDUM.-- Error from Barber district court; C. W. ELLIS judge. Action by C. T. Bradley and others against E. M Byerley and others. From an order discharging garnishees and taxing attorneys' fees to plaintiffs they bring the case to this court. Affirmed. The opinion herein, filed December 7, 1895, states the material facts.

Judgment affirmed.

S. L. Overstreet, and W. S. Denton, for plaintiffs in error.

G. M. Martin, for defendants in error J. P. Hall, Andrew Axline, and Nannie Runyan.

COLE J. All the Judges concurring.

OPINION

COLE, J.:

On April 25, 1889, Bradley & Metcalf brought an action in the district court of Barber county against the firm of Byerley, Dark & Runyan, and at the same time filed an affidavit in garnishment upon which a summons was issued to James P. Hall, Nannie Runyan, and Andrew Axline, as garnishees. The garnishee defendants Axline and Runyan filed their answers, denying generally that they were indebted in any manner to the principal defendants or that they had under their possession or control any property, money or credits belonging to said principal defendants. James P. Hall filed his answer, in which he set forth that he had in his possession and under his control certain property belonging to said principal defendants, a part of which was real and a part personal. He set forth in his answer that he held the personal property by virtue of a certain chattel mortgage which had been executed by the principal defendants to him to secure certain indebtedness, a portion of which was due to him personally, and the balance to certain other creditors named in said chattel mortgage. He further set forth in his answer that he held deeds to certain property which had been executed by said principal defendants, and the purpose for which he held the same; and further, that the principal defendants Byerley & Dark, who had succeeded the firm of Byerley, Dark & Runyan, had executed their chattel mortgages upon the personal property of which he had possession, subject to the one which had been given to Hall. The plaintiffs filed a written exception to the answers of said garnishees, and served notice upon each of them that objection was made to the discharge of said garnishees, or either of them, from liability under their said answers, and, the issue having thus been joined under the statute, the case came on for hearing between the plaintiffs and the garnishee defendants; whereupon the plaintiffs asked leave of court to dismiss said action as to the garnishee defendants Axline and Runyan, without prejudice to a future action, and further asked that said dismissal be granted without the taxation of attorneys' fees for said garnishee defendants; and the court sustained the application of the plaintiffs to dismiss, but overruled said application so far as the taxation of the attorneys' fees was concerned. After the court had ruled that the attorneys' fee would be taxed in favor of each of said garnishee defendants, the plaintiffs asked leave to withdraw their offer of dismissal, and to proceed with the trial upon the answer of said defendants, which motion the court overruled; and after the ruling of the court taxing the attorneys' fees in favor of each of said garnishee defendants, as well as the refusal of the court to permit the withdrawal of the offer to dismiss, the plaintiffs duly excepted. Thereupon the trial proceeded as between the plaintiffs and the garnishee defendant James P. Hall. And the plaintiffs, having introduced all their evidence, rested, and filed their motion for judgment upon the evidence introduced by them in the case, which motion was by the court overruled, and judgment rendered discharging the said garnishees and taxing the costs, including attorneys' fees against the plaintiffs. From the ruling of the court discharging each and all of said garnishees, as well as taxing the attorneys' fees in each case, plaintiffs in error bring the case here for review.

Counsel for defendants in error urged as a preliminary question that this court cannot review the matters in controversy for the reason that the record does not contain the final judgment in the original action. This position is not well taken. Paragraph 4641, General Statutes of 1889, provides:

"The supreme court may also reverse, vacate or modify . . . an order that grants or refuses a continuance; discharges, vacates, or modifies a provisional remedy."

Under this portion of said section, this court has the power to review the action of the trial court in discharging the garnishees from liability; and where the record contains everything necessary for this court to pass upon the errors complained of in that regard it is sufficient to challenge our attention, though the record does not contain the final judgment in the original case.

Plaintiffs in error urge a number of reasons why the judgment of the trial court should be reversed, and we shall proceed to consider them in the order in which they are presented. The first assignment of error upon which plaintiffs in error rely is, that "the court erred in dismissing the said action as to the defendant Nannie Runyan, and taxing the cost including $ 25 for attorney fees, against the plaintiffs in error." The record discloses that when the issue had been joined as between the plaintiffs in error and the garnishee defendant Nannie Runyan, and the time had arrived for the trial of said issue, plain...