Brothers v. Hubbard

• Decision Date: 19 November 1897
• Docket Number: 125
• Citation: 6 Kan.App. 878,50 P. 968
• Parties: LONG BROTHERS v. GEORGE E. HUBBARD
• Court: Kansas Court of Appeals

50 P. 968

6 Kan.App. 878

LONG BROTHERS v. GEORGE E. HUBBARD

No. 125

Court of Appeals of Kansas, Southern Department, Western Division

November 19, 1897

November 19, 1897,

Error from Pawnee District Court. Hon. S.W. Vandivert, Judge. Affirmed.

Judgment affirmed.

Peters & Nicholson, for plaintiffs in error.

W. H Vernon, for defendant in error.

OPINION

DENNISON, P. J.

On December 27, 1888, the plaintiffs commenced an action in the District Court of Pawnee County, Kansas, against George E Hubbard, by filing therein a paper purporting to be a petition, and causing a summons to be issued and served upon said Hubbard.

On March 9, 1889, an affidavit of M. E. Haseltine, agent of the plaintiffs, was filed in said court, and a bond was filed signed by Long Brothers by M. E. Haseltine, agent, as principals, and the Larned State Bank by Clark Gray, president, as surety, and an order of arrest was issued upon which the defendant, George E. Hubbard, was arrested. He gave a bail bond and was released. On January 9, 1892, the attorney for the defendant presented to the court a telegram from the defendant stating that he was sick and unable to attend court, and he also presented a physician's certificate corroborating the statements made in the telegram, and asked for a continuance until the next term of court. The court refused to grant the continuance, and, on January 11, 1892, the cause was heard by the court in the absence of the defendant in person, although the record shows that he appeared by his attorney. The court heard the evidence of the plaintiff, rendered judgment against Hubbard for $ 1,344 and interest, and decreed that the order of arrest be sustained; and the sheriff was ordered to commit the said Hubbard to the jail of Pawnee County, and hold him until he should satisfy said judgment and be discharged according to law. The bondsmen were given thirty days to deliver the said Hubbard to the sheriff. At the April term, 1892, of said court, the defendant filed a motion to set aside and vacate the judgment and order of arrest for the reasons, first, that the pretended petition filed in said cause does not state any cause of action upon which a judgment could be rendered; second, that no affidavit as required by law was filed in said cause, and no bond was given and executed by plaintiffs as required by law before the arrest of said defendant.

On April 28, 1892, the court sustained the motion to set aside the judgment, but took no action upon the motion to set aside the order of arrest. The plaintiffs were allowed to file an amended petition, and the cause was continued until the next term of court.

On May 18, 1892, the plaintiffs filed their amended petition. The defendant answered the amended petition, denying the jurisdiction of the court because no service had been made upon said defendant subsequently to the filing of the amended petition.

On January 6, 1893, the court took up the motion of the defendant asking that the order of arrest be vacated and set aside, and on January 7, 1893, set aside the order of arrest, and on the same day rendered judgment against Hubbard upon the amended petition for $ 1365.22 and costs.

The plaintiffs bring the case here for review, and in their brief make the following specifications of error.

1. The setting aside of the original judgment, of date of January 11, 1892.

2. Vacating, on the sixth day of January, 1893, the order of arrest.

3. The holding that the affidavit for the order of arrest was not sufficient.

4. The holding that the amended petition did not relate back to the date of filing of the original petition.

When the plaintiff's filed their amended petition, on May 18, 1892, they waived any irregularity or error that may have occurred prior to that time. Garanflo v. Cooley, 33 Kan. 137, 5 P. 766. It is therefore not necessary to determine whether the court erred in setting aside the original judgment, rendered on January 11, 1892, because, if such ruling was erroneous, the error was waived by the filing of the amended petition.

Both parties devote considerable space in their briefs to arguing the sufficiency and the insufficiency of the original petition. We cannot see where it in any wise affects this case. When the amended petition was filed, it became and must be treated as the original petition. The summons, the order of arrest, and the subsequent judgment, must each be considered the same as if the...