Company v. The Lansing Wagon Works

• Decision Date: 10 April 1897
• Docket Number: 9734
• Citation: 48 P. 638,58 Kan. 125
• Parties: THE STANDARD IMPLEMENT COMPANY et al. v. THE LANSING WAGON WORKS
• Court: Kansas Supreme Court

48 P. 638

58 Kan. 125

THE STANDARD IMPLEMENT COMPANY et al. v. THE LANSING WAGON WORKS

No. 9734

Supreme Court of Kansas

April 10, 1897

Decided January, 1897.

Error from Cowley District Court. Hon. A. M. Jackson, Judge.

This is a controversy between attaching creditors of P. G. Van Vleet. The Lansing Wagon Works, a corporation, brought suit against Van Vleet on the fifth of February, 1892, to recover the sum of twenty-five hundred dollars for goods sold and delivered which sum, it was alleged, was then due and payable. An attachment was issued, and levied on the property of the defendant. On the next day, the Standard Implement Company brought suit against Van Vleet on a promissory note for one thousand dollars and interest; and the Grand Detour Plow Company also brought two suits: One, on a past-due note for $ 1,644 and interest; the other, on two notes not due, for $ 3,059. Attachments were issued in both cases, and levied on the same property, subject to the prior attachment of the Lansing Wagon Works. On the eighth of February, the plaintiff filed an amended petition, alleging an indebtedness of $ 7,372 due it from Van Vleet for goods sold and delivered. Another affidavit for an attachment was filed, and on it an order of attachment for $ 4,872 was allowed by the probate judge. Thereupon, the clerk issued an order of attachment for $ 7,374. This last attachment was levied on a small amount of other property, but no rights are claimed under it in the controversy in this case. On February 23, 1892, the court with the consent of all the parties to this case, ordered the attached property to be sold and the proceeds brought into court. On the fifth of April, 1892, the Standard Implement Company and the Grand Detour Plow Company filed separate motions in the case brought by the Lansing Wagon Works asking leave to interplead in that action. On the ninth of April a judgment by default for $ 7,372 was entered in favor of the Lansing Wagon Works against Van Vleet, and, on the same day, judgments, also by default, were entered in favor of the Standard Implement Company and the Grand Detour Plow Company for the amounts of their respective claims. On the eighteenth of April, the motions asking leave to interplead were sustained; and, on the same day, interpleas were filed alleging the indebtedness of the plaintiff to the interpleaders, the issuance and levy of the attachments, that the account sued on by the Lansing Wagon Works on the fifth of February, 1892, was not due at the time the action was commenced, that no order allowing an attachment had been made by the judge, and that such attachment was, therefore, improvidently issued and void. On the sixth of May, the sheriff returned into court the order directing the sale of the attached property, with $ 4,141.22 as the net proceeds of the sale. Issues were raised by answer to the interpleas, and were tried on the eleventh of November, 1892. Testimony was offered showing an indebtedness from Van Vleet to the plaintiff of the amount for which suit was brought; but it appeared that this indebtedness, instead of being on an account, was evidenced by fourteen promissory notes, none of which were due, except one for eleven hundred dollars. The court made a general finding in favor of the plaintiff, and dismissed the interpleas with costs. The interpleaders bring the case here, alleging error in this order.

Judgment affirmed.

McDermott & Johnson, for plaintiffs in error.

Madden & Buckman, for defendant in error.

ALLEN J. Doster, C. J., concurring. JOHNSTON, J., dissenting.

OPINION

ALLEN, J.

I. The question for our consideration in this case is the scope of the inquiry into the validity of the plaintiff's cause of action, in a controversy with other attaching creditors who, by interpleas, question the validity of the prior attachment. It was developed on the trial of this case that while the cause of action stated in the petition was one for goods sold and delivered, the debt was in fact evidenced by promissory notes, only one of which was due; that an attachment for twenty-five hundred dollars had been obtained as upon a debt past due when in fact only eleven hundred dollars was due, and that on a promissory note not set up in the petition. It is insisted that, under the issues formed by the interpleas and the answers thereto, the interpleaders had the same right to litigate the plaintiff's claim that the defendant in the action would have had; and that they might make any attack on its right to prosecute the case by attachment and obtain a lien on his property that the debtor himself might have made; that, in this case, the plaintiff had no cause of action on an account for goods sold and delivered, and had no mature demand of any kind against the defendant, except the one on the note for eleven hundred dollars. On the other hand, the defendant in error contends that the case of the interpleaders was in the nature of a collateral attack; and that they can question the plaintiff's attachment only on the ground of fraud, or want of jurisdiction over the attached property. The authority for the proceedings under consideration is found in section 45a of the Code of Civil Procedure, which reads as follows: "Any person claiming property, money, effects or credits attached, may interplead in the cause, verifying the same by affidavit, made by himself, agent or attorney, and issues may be made upon such interpleader, and shall be tried as like issues between plaintiff and defendant, and without any unnecessary delay." The question is raised by the defendant in error whether the interpleaders had such a claim to the property as is contemplated by this section of the Code. It is said that, at the time the plaintiff's attachment was levied, the interpleaders neither had nor claimed any interest in, or lien upon, the attached property. It is argued that a subsequent attachment cannot confer such a claim upon the property as the law contemplates. We shall not attempt to decide this question, but shall assume that the practice followed is permissible, and shall consider only the question as to the scope of the inquiry. It has been held that, under the provisions of section 532 of the Code, any person interested in property levied on under an order of attachment may move to discharge the attachment as to the property claimed. Long Brothers v. Murphy, 27 Kan. 375. And this right has been held to extend to subsequent attaching creditors. Dolan v. Topping, 51 Kan. 321, 32 P. 1120; Bank of Santa Fe v. Haskell Co. Bank, 54 id. 375. In Dolan v. Topping, supra, it was held that the person who attempted to serve the attachment was not an officer, de jure or de facto, his appointment having been made by the clerk of the court without authority. In Bank of Santa Fe v. Haskell Co. Bank, it was held that the record failed to show valid grounds for an attachment. Ashton v. Clayton (27 Kan. 626) is mainly relied on by the plaintiffs in error. But in that case it is said that the claim of the plaintiff under which the prior attachment was levied, was, at the time the action was brought, a mere fiction; that the persons named as plaintiffs did not bring the action, nor authorize it to be brought; and that Ashton, while having a valid claim himself, could not obtain a lien by unauthorized use of the name of Burton, Moses & Brother in prosecuting a claim which had been in fact paid. A claimant occupying the position of the interpleaders in this case is usually called an intervenor. In Shinn on Attachments and Garnishments, Vol. 1, § 429, it is said:

"An intervenor cannot defend in the attachment suit in lieu of the defendant and defeat it for irregularities in the proceedings as against such defendant. . . . He cannot avail himself of such errors as would be simply sufficient for reversal in a direct proceeding, but must confine himself to such objections as he could make if attacking them in an independent collateral action."

In Dickenson v. Cowley (15 Kan. 269), construing a statute, relating to attachments on processes issued by justices of the peace, substantially similar to that under consideration in this case, it was held:

"One who comes in under chapter 164 of the laws of 1872, and claims property attached or levied on does not thereby concede the regularity of the proceedings, nor may he, like the defendant, avail himself of errors which are simply sufficient for reversal in direct proceedings therefor. He claims adversely to the proceedings, and can only make such objections as he could if attacking them in an independent collateral action."

In 3 Encyclopedia of Pleading and Practice, 69, it is said:

"Creditors of the defendant who have, subsequent to the attachment, acquired liens upon the attached property, as by judgment or attachment, may move to dissolve the prior attachment; but not upon the ground of mere irregularities in the proceedings which have been waived by the defendant himself."

Even on a motion to discharge an attachment the merits of the action are not in issue, unless necessarily involved in the statutory ground for the attachment set up in the plaintiff's affidavit. Chouteau v. Boughton, 100 Mo. 406, 13 S.W. 877; Kohler v. Agassiz, 99 Cal. 9, 33 P. 741.

"A junior attaching creditor may intervene in a prior attachment suit and here contest his rights with the plaintiff in that suit, but he cannot be let in to defend the suit and dispute the grounds of the attachment, in lieu of the defendant, nor to defeat the attachment for mere errors or irregularities in the proceedings, but only for imperfections which are unamendable and render the proceedings void." Sannoner v. Jacobson & Co., 47 Ark. 31, 14 S.W. 458. See also Baker v. Ayres, 58 id. 524; Carter v. O'Bryan...