Emerson v. Administrator

• Decision Date: 15 November 1897
• Docket Number: 270
• Citation: 51 P. 50,6 Kan.App. 325
• Parties: J. D. EMERSON v. C. W. THATCHER as Administrator
• Court: Kansas Court of Appeals

51 P. 50

6 Kan.App. 325

J. D. EMERSON v. C. W. THATCHER as Administrator

No. 270

Court of Appeals of Kansas, Northern Department, Central Division

November 15, 1897

November 15, 1897.

Error from Cloud District Court. Hon. F. W. Sturges, Judge. Affirmed.

Judgment affirmed.

Ellis Reed, Cook & Ellis, for plaintiff in error.

Pulsifer & Alexander, for defendant in error.

OPINION

MAHAN, P. J.

The defendant in error brought this action to enforce the liability of plaintiff in error as a stockholder in the Clyde Banking Company, a corporation organized under the statutes of the State. Emerson is a nonresident, and the action was begun by an attachment levied upon land. The defendant appeared specially and moved the court to quash the writ of attachment, first because the clerk had specified therein the probable amount of costs at one hundred dollars, instead of fifty dollars as the statute provides; second, because the under-sheriff who levied the writ did not participate with the appraisers in the valuation of the property attached. The court denied the motion to quash. Upon the hearing of the motion, the clerk was permitted to amend the writ by striking out the one hundred dollars and inserting fifty dollars.

Counsel contends that the court exceeded its jurisdiction in issuing the writ, and therefore the amendment ought not to have been allowed; that the writ was void for want of jurisdiction, and hence the motion to quash should have been sustained. In support of this contention, counsel cites a large number of authorities to the effect that the judgment of a court without jurisdiction or in excess of its jurisdiction is a void judgment.

Our conclusion is that the clerk's error was an irregularity only, and did not avoid the writ; that under the statute it was amendable, and the court did not abuse its discretion in permitting it to be amended. Neither the error of the clerk nor the action of the court in allowing it to be corrected affected the substantial rights of the defendant. If there had resulted an excessive levy, the court would have, upon motion, discharged such excess of property. The Code requires that all matters which are not prejudicial to the rights of the party shall be disregarded.

Upon the hearing of the motion to quash, the defendant offered in evidence the affidavit of the under-sheriff to the effect that he did not participate with the appraisers in determining the valuation of the property attached, and that he signed the return of the appraisers for the purpose of identification only. To this the plaintiff objected and the court sustained the objection. If this was error, it was immaterial. It was something over which the plaintiff had no control. It did not affect the substantial rights of the defendant. If, in the exercise of their judgment, the two appraisers, without the concurrence of the under-sheriff, levied upon too much property, the excess could have been released upon motion. However, it appears no other property save the quarter-section of land was levied upon. This property was an entire tract and could not well have been divided. There was no such abuse of the process of the court as would have justified quashing the writ. Gapen v. Stephenson, 18 Kan. 140.

The fourth assignment of error is, that the court abused its discretion in permitting the clerk to amend the writ. The Code authorizes the amendment of any pleading, process, or proceeding. An attachment is a process of the court. The error of the clerk was clearly an irregularity not going to the jurisdiction of the court; it did not result in any prejudice to the rights of the defendant, so that it was immaterial whether the writ was amended or not. It was not sufficient cause to authorize the court to quash it upon the defendant's motion. National Bank v. Franklin, 20 Kan. 264; Smith v. Payton, 13 id. 362; Bogle v. Bloom, 36 id. 512; St. L. & S. F. Rly. Co. v. Rierson, 38 id. 359.

Complaint is made that the court overruled the defendant's demurrer to the petition. The plaintiff's cause of action against the bank, upon which he sought to charge the defendant as a stockholder, was a certificate of deposit issued by the bank to the plaintiff's testator and "payable to the order of himself, . . . upon the return of this...