C. M. Henderson & Co. v. Stetter

• Decision Date: 01 July 1883
• Citation: 2 P. 849,31 Kan. 56
• Court: Kansas Supreme Court
• Parties: C. M. HENDERSON & CO. v. N. STETTER, et al

2 P. 849

31 Kan. 56

C. M. HENDERSON & CO. v. N. STETTER, et al

Supreme Court of Kansas

July 1, 1883

Error from Atchison District Court.

ACTION in attachment by C. M. Henderson & Co. against N Stetter. Trial by the court at the June Term, 1882, when the court found as a conclusion of law that the attachment lien of the plaintiffs upon certain funds was subsequent to the attachment liens of Carson, Pirie, Scott & Co., Wm. Ziock & Co., and Selz, Schwab & Co., and made an order accordingly. This order plaintiffs bring here.

Judgment reversed and case remanded.

T. M Pierce, for plaintiffs in error.

H. M Jackson, for defendants in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

The only question in this case is one of priority between attaching creditors. The facts are these: An action in attachment was commenced in the name of "C. M. Henderson and Wm. Henderson, partners as C. M. Henderson & Co." The petition, affidavit and order of attachment were all thus entitled; and it is conceded that this attachment was prior to those of defendants in error. Afterward, by agreement of the defendant in the action in open court, the petition was amended by inserting the letter "S.") in the name of Wm. Henderson, and adding the name of Edmund Burke, so that the title thenceforward read "C. M. Henderson, Wm. S. Henderson, and Edmund Burke, partners as C. M. Henderson & Co." The petition as thus amended was on the same day refiled. No change in the title of the plaintiff was made in the affidavit or order of attachment, and no new affidavit was made, or order of attachment issued. This amendment was made after the levy of the attachment of defendants in error. Did this amendment deprive plaintiffs in error of their priority? This is the only ground disclosed by the record; for while counsel for defendants in error speak of other matters, they are outside the record, and cannot be considered by us. Of course no allegation in the motion or answer of the defendant in the attachment action amounts to anything, as no ruling was ever made on the motion, and judgment was rendered against the defendant.

This question must be answered in the negative, and for these reasons: The amendment was one which ought to have been made, and one which did not change substantially the cause of action. It was always, and always alleged as, a cause of action in favor of the firm of C. M. Henderson &amp Co. ...