Green v. McCracken

• Decision Date: 08 February 1902
• Docket Number: 12,080
• Citation: 64 Kan. 330,67 P. 857
• Parties: JAMES GREEN, as T. Green Grocer Company, v. A. L. MCCRACKEN
• Court: Kansas Supreme Court

67 P. 857

64 Kan. 330

JAMES GREEN, as T. Green Grocer Company, v. A. L. MCCRACKEN

No. 12,080

Supreme Court of Kansas

February 8, 1902

Decided January, 1902.

Error from Wyandotte court of common pleas; W. G. HOLT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, DISTRICT COURT--Failure to Serve Summons within Sixty Days--Motion to Dismiss. An action will not be dismissed on motion of a defendant simply because no service of summons of any kind has been made on him within sixty days from the filing of the petition.

2. EVIDENCE--Promissory Note--Affixing Revenue Stamp after Execution. The affixing of a revenue stamp to a note after its execution, with the knowledge and consent of the United States revenue collector, the failure to affix such stamp at the time the note was made having occurred through ignorance and not through fraud, makes such note competent evidence, if it was incompetent without such stamp.

3. EVIDENCE--Husband and Wife--Agency of Wife. In an action where the husband is a party, a wife who has been made an agent to keep and care for the money of her husband is competent to testify concerning the fact that such money was loaned, the loaning being within the scope of her agency to care for.

4. EVIDENCE--Value of Attached Goods--Inventory and Appraisement Competent. In an action for damages caused by the wrongful attachment of a stock of goods, the inventory and appraisement made under the law by the officer levying such attachment is competent evidence of the value of such goods as against the plaintiff in the attachment action.

McGrew Watson & Watson, for plaintiff in error.

Wm. J. Fuller, for defendant in error.

CUNNINGHAM J. JOHNSTON and GREENE, JJ., concurring. ELLIS, J., dissenting.

OPINION

CUNNINGHAM, J.:

One C. A. Olson gave his note to his brother-in-law, A. L. McCracken, for the sum of $ 675, and secured the same by a chattel mortgage upon a stock of groceries owned by Olson. McCracken being in possession of these goods, the plaintiff in error Green, who was a creditor of Olson, caused an attachment to be levied thereon, claiming that the mortgage from Olson to McCracken was fraudulent and void as against his creditors. The goods were disposed of under this attachment, and McCracken brought this action against Green and the constable who levied the order for the purpose of recovering the value thereof. The case was brought in the court of common pleas of Wyandotte county on July 14, 1898. On that date summons was issued for both defendants and returned, July 21, non est as to Green, who was a non-resident of Kansas. On September 17 plaintiff filed his affidavit for an attachment, and the order therefor was returned October 15 without return being indorsed thereon. On November 15 an alias order of attachment was issued, which was returned, November 25, "no property found." On November 26 the plaintiff filed his affidavit for garnishment summons, which was issued to several persons named as garnishees in the affidavit. These persons subsequently made answers, disclosing that some of them owed the defendant Green, and on December 22 the plaintiff filed his affidavit for publication service as against this defendant on the ground of non-residence. After the issuance and service of the garnishment summons, to wit, on December 2, Green filed his motion, appearing specially for the purpose of the motion only, to dismiss the action as to him for the reason that the court had no jurisdiction of him, because more than sixty days had elapsed since the filing of the petition and no service of summons of any kind or character had been made upon him. This motion was overruled by the court. Issues were made up and trial had, resulting in a judgment for plaintiff against Green only, the constable having been dismissed from the case before trial.

Various errors are alleged as ground for reversal. These will be considered in the order in which they are presented in the briefs.

First. The first is that growing out of the overruling of Green's motion to dismiss, the claim being made that, inasmuch as no service was obtained upon him before the expiration of sixty days after the filing of the petition, the court was without jurisdiction to proceed further in the case.

Section 57 of the code of civil procedure (Gen. Stat. 1901, § 4487) provides:

"A civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon."

This case then was properly commenced on the day of the filing of the petition. Successive but unsuccessful attempts were made thereafter to get jurisdiction of the property of the defendant. These attempts were continued until finally they were successful through garnishment proceedings, and thereafter prompt steps were taken to procure service by publication. Neither the section quoted nor any other one requires the petition to be refiled after the expiration of sixty days in cases where service has not been had during that interval. To be sure, the mere filing of the petition without being followed by the service of summons in the time specified would not stay the statute of limitations as provided in section 20 of the code (Gen. Stat. 1901, § 4448). Neither would it amount to a lis pendens under section 81 (Gen. Stat. 1901, § 4515). But neither of these questions arises here. The motion of the defendant was to dismiss the action. Plaintiff in error thinks that the case of Jones v. Warnick, 49 Kan. 63, 30 P. 115, is decisive of the question in his favor. We are unable to see the relevancy of this case to the question in hand. We see no error in the action of the trial court in overruling this motion.

Second. During the progress of the trial plaintiff below thought it was necessary for him to prove the indebtedness of Olson to him, and for that purpose sought to introduce the note in evidence for the security of which the chattel mortgage on the goods in question had been given. Objection was made to its introduction because it had not been stamped as required by the United States revenue law at the time it was given. It had, however, been subsequently stamped by permission of the United States revenue collector for the district of Kansas, upon the affidavit of McCracken that the failure to stamp it at the time of its execution was through ignorance, and not for the purpose of defrauding the government. The court permitted the note to go to the jury, and we think committed no error in so doing. The defense proceeded upon the theory that this was a fraudulent transaction and so substantially admitted the execution of the note and mortgage, and it is doubtful if the introduction of the note was material; but even if it was material, and was incompetent as evidence without the revenue stamp affixed, we think that the subsequent attaching of the stamp cured this defect.

Third. Plaintiff below sought to introduce the testimony of his wife for the purpose of showing that he had money to loan Olson, as he claimed was the case, which defendant had introduced much evidence to disprove, and, in order to render the evidence competent by proving that she was acting as his agent, she was asked the following questions:

"Ques. You may state, Mrs. McCracken, if Mr. McCracken, your husband, about August or September, 1895, appointed and empowered you to keep and care for as custodian of his and your money. Ans. He did.

"Q. Now, you may state to the jury, if you know, just as near as you can, the amount of money that your husband had, if any in the month of August or September, 1895. A. Something over $ 700.

"Q. You may state, Mrs. McCracken, if you know the amount of money that your husband and you had which was in your possession, if any, about the months of April and May, 1898. A. Between $ 600 and $ 700.

"Q. You may state, Mrs. McCracken, what was...