Connelly v. Woods

• Decision Date: 07 February 1884
• Citation: 31 Kan. 359,2 P. 773
• Parties: A. J. CONNELLY, et al., v. G. W. WOODS
• Court: Kansas Supreme Court

2 P. 773

31 Kan. 359

A. J. CONNELLY, et al., v. G. W. WOODS

Supreme Court of Kansas

February 7, 1884

Error from Johnson District Court.

THE opinion states the nature of the action, and the facts. At the June Term, 1883, plaintiff Woods recovered a judgment for $ 96 damages against defendants Connelly and Hunter, who bring it here for review.

Judgment reversed as to justice of the peace and affirmed as to Connelly.

Gill & Parker, for plaintiffs in error.

A Smith Devenney, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

The facts of this case, stated briefly, are substantially as follows: On December 4, 1882, A. J. Connelly brought an action before G. C. Hunter, a justice of the peace of Aubrey township, Johnson county, Kansas, against G. W. Woods, on a promissory note for $ 100, with interest, dated September 1, 1882, and payable six months after date. Connelly filed this promissory note with the justice of the peace as his bill of particulars. On the same day, to wit, December 4, 1882, Connelly filed an affidavit with the justice of the peace for an order of attachment, in which affidavit he stated, among other things, that said note was due; and at the same time an attachment bond or undertaking was given, with A. M. Young as surety; and at the same time a summons and an order of attachment were issued by the justice, and placed in the hands of Charles Chrisman, a constable of Aubrey township, in said county, who duly served the same on the same day. The summons was served by leaving a copy thereof at the usual place of residence of Woods, and service of summons was also made at a subsequent time by publication. The order of attachment was also duly served on December 4, 1882, by attaching a horse belonging to Woods. At the time this action was commenced, Woods was temporarily absent from the state of Kansas, and was in Texas, but he returned home in a few days afterward, and before anything further was done in the action. The return day of the foregoing writs, and the day set for the trial of the case, was the 9th day of December, 1882, but on that day the case was continued to January 13, 1883. On December 11, 1882, an order was made by the justice of the peace directing the constable to dispose of said property as upon execution, and on December 23, 1882, the constable sold the same to one T. W. Todd, for $ 290, and Todd immediately took the horse into the state of Missouri, where he has ever since been. On January 13, 1883, the justice of the peace rendered judgment by default in favor of Connelly, and against Woods, for the sum of $ 103.65, and costs, taxed at $ 50.90.

Woods never made any appearance in the case, although he had knowledge of the same prior to the rendition of the judgment therein. The proceeds of the sale of the horse were applied in payment of this judgment, and also in payment of two other judgments which had also been rendered by the same justice of the peace against Woods and in favor of other parties about that time. On January 17, 1883, Woods brought this present action in the district court of Johnson county against Connelly, the plaintiff in said attachment action, and A. M. Young, the surety on the attachment bond, and G. C. Hunter, the justice of the peace, and Charles Chrisman, the constable, charging them, among other things, with having taken the said horse to the state of Missouri and selling him and applying the proceeds thereof to their own use. All the defendants answered to the plaintiff's petition by filing general denials, and Chrisman also set up a justification under the order of attachment. The plaintiff replied, setting up new facts. A trial was had before the court and a jury, and the jury found a general verdict in favor of Woods and against the defendants Connelly and Hunter, and assessed the plaintiff's damages at $ 96. The jury also found specially that there was no debt due from Woods to Connelly at the time the suit was commenced by Connelly against Woods in the justice's court, and also found specially that it was not within the power of Chrisman at any time after he sold the horse to Todd to deliver the same to Woods. Upon these findings the court below rendered judgment in favor of Woods and against Connelly and Hunter for the sum of $ 96 and costs of suit, and the case was dismissed as to Chrisman and Young. Connelly and Hunter, as plaintiffs in error, now bring the case to this court, and ask that said judgment of the district court be reversed.

From the foregoing facts, we think it will appear that one of the main questions involved in this case, if not the main question, is whether the justice of the peace, Hunter, had any jurisdiction to issue the said order of attachment; for if the justice had such jurisdiction, then the plaintiff below, Woods, has no right to recover as against the justice, and possibly not as against any other person; but if the justice did not have any such jurisdiction, then we think that Woods certainly has a right to maintain this action, and to recover the full amount which he did recover. It would seem that the horse was worth about $ 400, and that the jury, under the evidence and the instructions of the court below, deducted from that amount an amount equal to the three judgments which had been previously rendered by the justice of the peace against Woods and in favor of Connelly and others, and rendered their verdict for the excess of the value of the horse over and above the amount of the said three judgments.

That the promissory note sued on in the justice's court was not due when the action in the justice's court was commenced, there can be no doubt. It was not due when the action in the justice's court was commenced; it was not due on the return day of the summons and order of attachment; it was not due when the justice of the peace ordered the horse to be sold; it was not due when the horse was in fact sold; it was not due when the justice rendered judgment in favor of Connelly and against Woods; it was not due when the proceeds of the sale of the horse were paid on said three judgments; and it was not due when this present action was commenced. The promissory note itself shows that it was not due, and there was nothing presented in either the justice's court or in the district court showing that it was due, except the said affidavit of Connelly for the order of attachment; and that affidavit states that it was due, in the following words, to wit: "That said claim is just, is due, and is wholly unpaid; and that said affiant believes that said plaintiff [Connelly] ought to recover of said defendant [Woods] the said sum," etc.

The...