Smith-Frazer Boot & Shoe Co. v. Derse

• Citation: 21 P. 167,41 Kan. 150
• Parties: THE SMITH-FRAZER BOOT AND SHOE COMPANY v. F. J. DERSE
• Decision Date: 09 March 1889
• Court: United States State Supreme Court of Kansas

21 P. 167

41 Kan. 150

THE SMITH-FRAZER BOOT AND SHOE COMPANY v. F. J. DERSE

Supreme Court of Kansas

March 9, 1889

Error from Cloud District Court.

THE opinion states the case.

Judgment affirmed.

W. D Hilton, for plaintiff in error.

W. T Dillon, and Van Natta & Close, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On the 24th of June, 1886, the Smith-Frazer Boot and Shoe Co. commenced its action against F. J. Derse, in the district court of Republic county, to recover $ 543.85 upon an account for goods sold and delivered to the defendant. At the commencement of the action a summons was issued and an order of attachment obtained against the property of the defendant upon an affidavit and undertaking filed therefor. On the 19th day of August, 1886, the plaintiff attempted to dismiss its action without prejudice, and on August 20, 1886, commenced another action against the defendant in the district court of Cloud county, to recover upon the same account. An order of attachment was also issued in this action directed to the sheriff of Republic county. Under the order, he levied upon and took into his possession a stock of boots and shoes in Belleville, as the property of the defendant. On the 16th day of October, 1886, the defendant presented his motion to the district judge of Cloud county, for a discharge of the attachment: 1st, alleging that the grounds set forth in the affidavit for the attachment were untrue; 2d, because another action was pending in the district court of Republic county, between the same parties and upon the same cause of action. This motion was heard on the 18th of October, 1886, by the district judge at chambers. After hearing the evidence and the arguments of the attorneys, the district judge discharged the order of attachment. To this ruling the plaintiff excepted, and brings the case here.

All the papers and records in the case, commenced on June 24th, in Republic county, were introduced in evidence upon the hearing of the motion, and are referred to in the transcript filed in this court, but copies of these papers are not embraced in the transcript. An action may be dismissed by the plaintiff without prejudice to a future action, at any time before the final submission of the case to the jury or the court; but as the dismissal is in the nature of a judgment, it must necessarily require an order of the court, and cannot be accomplished by a mere act of the plaintiff alone. ( Allen v. Dodson, 39 Kan. 220; Brown v. Mining Co., 32 id. 528; Oberlander v. Confrey, 38 id 462.) The transcript does not show that any judgment of dismissal was entered; therefore, at the time the motion was heard, there was another cause pending between the same parties for the same cause in Republic county, in which an order of attachment had been issued against the property of the defendant. There is nothing appearing in the record showing or tending to show any reason or necessity for the commencement of the subsequent action on the 19th of August, 1886. Under the circumstances, the district judge had full authority to discharge the attachment commenced in Cloud county. (Civil Code, § 89, subdiv. 3.) Before a second action was commenced, and an attachment issued therein, the prior action should have been disposed of by some judicial act. An abuse of...