Honce v. Schram

• Decision Date: 07 April 1906
• Docket Number: 14,408
• Parties: S. A. HONCE et al. v. CHARLES SCHRAM et al
• Court: Kansas Supreme Court

85 P. 535

73 Kan. 368

S. A. HONCE et al. v. CHARLES SCHRAM et al

No. 14,408

Supreme Court of Kansas

April 7, 1906

Decided January, 1906.

Error from Butler district court; GRANVILLE P. AIKMAN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PROCEEDING IN AID OF EXECUTION--Action of Probate Court--Review by District Court. In a proceeding in aid of execution the probate judge acts as a subordinate officer of the district court from which the execution is issued, and in the supervision of the probate judge's action the court exercises original, rather than appellate, jurisdiction.

2. PROCEEDING IN AID OF EXECUTION--Method of Ioking Jurisdiction of District Court. Where such supervision was invoked by what was termed a "petition in error," and the court gave such consideration to the proceedings of the probate judge as would have been given on a formal application, it cannot be held that its action was void or that any one was prejudiced by the informality.

3. PROCEEDING IN AID OF EXECUTION--Basis for the Proceeding. An abstract of a judgment of a justice of the peace duly filed in the district court is a sufficient basis for a proceeding in aid of execution.

4. JUDGMENTS--Payment by a Surety--Subrogation--Contribution. Under section 480 of the civil code (Gen. Stat. 1901, § 4926) a surety who has paid a judgment may have the benefit of such judgment, not only to compel repayment from the principal, but also to enforce contribution against other sureties jointly liable with him on the judgment.

5. JUDGMENTS--Assignment to a Surety--Satisfaction. The payment of such judgment by one of the sureties against whom it was rendered, and the taking of an assignment of the judgment to himself, did not operate as a satisfaction of the judgment against the other judgment debtors.

6. PROCEEDING IN AID OF EXECUTION--Rights of Third Parties to Ownership of Assets. While the rights of third parties as to the ownership of assets sought to be subjected to the payment of a judgment cannot be finally determined in this summary proceeding, the mere fact that property is in the hands of others than the judgment debtor, or that a colorable dispute as to the ownership arises, does not deprive the judge of power to proceed.

7. PROCEEDING IN AID OF EXECUTION--Res Judicata--One Not a Party. A third person who is subpoenaed as a witness and gives testimony in such a proceeding, but who is not made a party to it, and who does not intervene to claim the property, is not bound by the order of the judge, and may afterward in an appropriate action litigate his rights to such property.

8. PROCEEDING IN AID OF EXECUTION--Absence of the Judgment Debtor. The failure of the judgment debtor to appear and give testimony in the proceeding does not preclude the examination of other witnesses, nor prevent the judge from making such order as the testimony produced will warrant.

N. A. Yeager, for plaintiffs in error.

T. A. Kramer, for defendant in error Charles Schram.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.:

This was a proceeding in aid of execution. Joseph S. Bogle gave a promissory note for borrowed money, and procured his brother, John P. Bogle, and also Charles Schram and E. H. Hutchins, to sign the note as sureties. Default was made in the payment of the note, and on May 16, 1891, judgment was obtained before a justice of the peace against the principal and the sureties. For his own protection one of the sureties, Schram, paid the judgment and took an assignment of it. An abstract of the judgment was filed in the district court, and several executions were issued without substantial results.

On October 13, 1903, Schram instituted this proceeding, and an order was issued by the probate judge requiring both of the Bogles to appear and answer concerning property of theirs which might be subject to the payment of the judgment. In that connection a subpoena duces tecum was issued, directed to S. A. Honce, a daughter of John P. Bogle, and to Chris Wirth, under which S. A. Honce produced a note for $ 300, executed by Wirth. On the part of Schram it was claimed that this note was the property of John P. Bogle, while Mrs. Honce stated that it had been given to her by her father for services rendered. After a hearing the probate judge found that the note and indebtedness were the property of John P. Bogle, and in order to cover it up and to prevent Schram from collecting a share of the judgment from him he had attempted to transfer the note and indebtedness to his daughter, Mrs. Honce, and that the transfer was without consideration and fraudulent. An order was made by the judge appointing a receiver, and directing him to take charge of and collect the note and apply the proceeds upon the Bogle judgment. The probate judge, who had obtained possession of the note under the subpoena duces tecum, delivered it to the receiver.

Exceptions were taken to the rulings of the probate judge, a transcript of the proceedings was made, and the matter was taken before the district court upon what is designated as a "petition in error." Schram moved to dismiss the proceeding for lack of jurisdiction in the district court, on the theory that a proceeding in error is not warranted in such cases. The district court denied the motion, reviewed the proceedings before the probate judge, and sustained his rulings. John P. Bogle died after the proceeding was begun, and the administrator of his estate, as well as his daughter, S. A. Honce, complain of the rulings of the district court. In a cross-petition in error Schram also complains of the refusal of the district court to dismiss the proceeding.

In a proceeding in aid of execution the jurisdiction of the district court to review and revise the action of the probate judge is original rather than appellate.

"While the proceedings were had before the probate judge, they were not an exercise of probate jurisdiction, nor was a record of them required to be kept in the probate court. The judge was exercising judicial functions in a case in the district court, and was in fact acting as a subordinate officer of that court, and under its supervisory control." ( Bowersock v. Adams, 55 Kan. 681, 685, 41 P. 971.)

(See, also, Young v. Ledrick, 14 Kan. 92; Sewing-machine Co. v. Wait, 24 Kan. 136; Code, § 499; Gen. Stat. 1901, § 4976.)

The proceeding, being in the district court, was of course subject to its supervision. Although irregularly brought to its attention, the court had jurisdiction to examine and, if necessary, to correct the proceedings of its subordinate officer. That jurisdiction was invoked, and a hearing had upon a full transcript of the proceedings. The consideration of the court was substantially what it would have been if it had been invoked by an ordinary application, and, that being true, the name of the paper by which its jurisdiction was invoked is not very material. The transcript presented the doings of the probate judge more fully than if the requirements of the code had been strictly followed. The code provides that "the judge shall reduce all his orders to writing, which together with a minute of his proceedings signed by himself...