Crawford v. McSpadden
| Decision Date | 06 October 1899 |
| Docket Number | 602 |
| Citation | 58 P. 485,9 Kan.App. 149 |
| Court | Kansas Court of Appeals |
| Parties | BEN HUEY AND J. W. CRAWFORD v. IDA M. BRIMER AND C. M. MCSPADDEN, partners under the firm name of Brimer & McSpadden |
Decided October, 1899.
Error from Pottawatomie district court; WILLIAM THOMSON, judge.
Judgment affirmed.
1. ATTACHMENT -- Action against Sheriff -- Void Writ. In an action by a stranger to the writ, an attempted seizure of property under a void writ of attachment does not give the sheriff such a special interest therein as will enable him to attack the bona fides of a sale and delivery of such property.
2. PRACTICE, DISTRICT COURT -- Security for Costs -- Poverty Affidavit. A plaintiff may by showing his inability through poverty, to comply with the rule requiring him to give additional security for costs excuse himself therefrom, and it is not error for the court in such case to relieve him from a compliance with the rule and permit him to proceed in the cause.
Irish & Brock, for plaintiffs in error.
D. V. Sprague, for defendants in error.
There is but one question presented by the record in this case. There are several assignments of error, but they all depend on the solution of the one question, and that is, In a suit by a stranger to a proceeding in attachment, can a sheriff justify under a writ which is void in fact although regular upon its face, and under such justification attack the validity of a sale by the debtors named in the attachment to the plaintiffs? The defendants in error, ignoring this question, say that before the present suit was commenced the attachment was dissolved by order of the court upon motion, and cite us to the record for evidence supporting that proposition. The record reads as follows:
Subsequently the plaintiffs offered as evidence in the case all the files in the case referred to. But it is stated in the record that only three of the papers, to wit, the petition, the attachment, and the affidavit therefor, are incorporated in the record, and the others are omitted to save expense. We find no order of the court discharging the attachment. There is nothing in the record in reference thereto except the statement above quoted, which excludes the evidence, the only evidence competent to prove the fact. Hence we cannot say that the record discloses that the attachment was dissolved before this case was begun, or before the trial, or at all. The suit in which the attachment was issued consisted of one count for goods sold by the Gregory Grocery Company to McSpadden Brothers, and discloses the fact, as does the affidavit for attachment, that but a small part of the account was due at the time the suit was begun. No order was obtained for an attachment as provided for in such cases. It was not a case of irregularity upon the part of the clerk, but an entire absence of authority under the law. Hence, we say it was not an irregular, voidable attachment, but a void attachment. It has been held by the courts of New York that in such cases the officer is the agent of the attaching creditor. In 2 Greenleaf on Evidence, paragraph 629, it is said:
"But in trespass . . . where the action is brought by a stranger whose goods have been wrongfully taken by the sheriff, under an execution issued against another person, the sheriff or his officers, justifying under the process, will be held to prove the judgment upon which it issued."
In Mamlock v. White, 20 Cal. 598, it is said:
"Proof of the debt would not be necessary in order to justify the sheriff in seizing the property, if in the possession of the attachment debtor, and was only necessary in this case in order to enable the defendant to place himself in a position to attack the sale to the plaintiff as being void against creditors."
It was objected that...
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