Snavely v. Abbott Buggy Co.

• Decision Date: 07 January 1887
• Citation: 36 Kan. 106,12 P. 522
• Parties: MOSES B. SNAVELY v. THE ABBOTT BUGGY COMPANY
• Court: Kansas Supreme Court

12 P. 522

36 Kan. 106

MOSES B. SNAVELY v. THE ABBOTT BUGGY COMPANY

Supreme Court of Kansas

January 7, 1887

Error from Anderson District Court.

THE opinion states the case.

Case dismissed.

W. A Johnson, for plaintiff in error.

L. K Kirk, and Jno. W. Deford, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought on September 18, 1884, in the district court of Anderson county, by the Abbott Buggy Company, a private corporation under the laws of the state of Illinois, against Moses B. Snavely, to recover $ 540 on a promissory note. An order of attachment was also issued in the case, and levied upon certain property belonging to the defendant. On January 15, 1885, the court below overruled a motion of the defendant to discharge the attachment, and the defendant, without waiting for a trial upon the merits of the action, or for a final judgment to be rendered in the action, at once made a case for the supreme court. This case was served upon the opposite counsel on January 26, 1885, and was settled by the court below on February 9, 1885, and was brought to the supreme court on June 8, 1885. The only ground alleged for error is the overruling of the defendant's motion to dissolve the attachment. In this court the defendant in error, plaintiff below, made a motion to dismiss the petition in error for the reason that an order of the district court overruling a motion to discharge an attachment is not reviewable in the supreme court until after a final judgment has been rendered in the case. After this motion was made, the plaintiff in error, defendant below, moved the court for leave to file a transcript showing that a final judgment was rendered in the case in the court below on March 10, 1886. This transcript was a transcript of the judgment only, and of nothing else. On December 8, 1886, these motions and the case upon its merits were all submitted to the supreme court.

The first question to be considered in this court is, whether the above-mentioned transcript may be filed as a part of the case in this court, or not. We think not. The case has been brought to this court upon a "case-made" for the supreme court, and such "case-made" cannot be amended or supplemented in this court by inserting anything therein or attaching anything thereto which did not belong to the "case-made" and constitute a part thereof when it was originally settled and signed by the judge and attested by the clerk of the court below. ( Transportation Co. v. Palmer, 19 Kan. 471; Parker v. Sewing Machine Co., 24 id. 31.) Besides, the transcript which the plaintiff in error now desires to file is a transcript of a judgment only, which was rendered nine months after the case was brought to this court. A case can be determined in this court only upon a transcript of the proceedings of the court below, or upon a "case-made" for the supreme court. (Civil Code, § 546.) And it cannot be determined partly upon one and partly upon the other. The motion of the plaintiff in error will therefore be overruled.

The next question to be considered in this case is the one arising upon the motion of the defendant in error, plaintiff below, to dismiss the action from this court, upon the ground that this court has no jurisdiction to hear and determine a case where no final judgment has been rendered in the case, and where the only alleged ground for error is the overruling of a motion to discharge an attachment. The principal statutes necessary to be considered upon this question are §§ 542 and 543 of the civil code, which read as follows:

"SEC. 542. The supreme court may reverse, vacate or modify a judgment of the district court for errors appearing on the record; and in the reversal of such judgment or order, may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof. The supreme court may also reverse, vacate or modify any of the following orders of the district court, or a judge thereof: First, A final order. Second, An order that grants or refuses a continuance; discharges, vacates or modifies a provisional remedy; or grants, refuses, vacates or modifies an injunction; that grants or refuses a new trial; or that confirms or refuses to confirm the report of a referee; or that sustains or overrules a demurrer. Third, An order that involves the merits of an action, or some part thereof.

"SEC. 543. An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment, is a final order, which may be vacated, modified, or reversed, as provided in this article."

It will be seen from the foregoing statutes that the legislature has provided specifically and with great minuteness just whet judgments and orders of the district court may be reversed, vacated or modified by the supreme court. These judgments and orders which may be so reversed, vacated or modified are: first, all judgments for errors appearing of record, together with all intermediate orders involving the merits of the action or some portion thereof; second, all final orders; third, various orders respecting continuances, provisional remedies, injunctions, new trials, reports of referees, demurrers, and such other orders as involve the merits of the action or some part thereof. Under the foregoing statutes an order may be reversed, vacated or modified which grants or refuses a continuance, grants or refuses an injunction, grants or refuses a new trial, confirms or refuses to confirm the report of a referee, sustains or overrules a demurrer, or involves the merits of an action or some part thereof; and the above-quoted statutes use all the foregoing italicized words, but they do not use any one of them with reference to provisional remedies, except with reference to injunctions, which provisional remedies include arrest and bail, replevin pendente lite, attachment, temporary or interlocutory injunctions, receivers, and the depositing of money, etc., under §§ 259 and 260 of the civil code. With reference to all provisional remedies, except injunctions, the statutes use only the words "discharges," "vacates," and "modifies." Hence, as the statutes show, it was clearly not the intention of the legislature that an order of the district court granting, refusing, confirming or sustaining a provisional remedy, except as to injunctions, should be reviewed in the supreme court prior to the final judgment in the case; nor was it the intention of the legislature that an order "involving the merits" of a provisional remedy, except as to injunctions, should be reviewed by the supreme court prior to such final judgment, unless such order discharged, vacated or modified the provisional remedy. The legislature had the whole subject of the reviewing of judgments and orders under consideration, and evidently, from the language used, it did not intend that an order granting, refusing, confirming or sustaining any provisional remedy, except an injunction, should be reexamined by the supreme court prior to the final judgment. If the legislature had intended that such orders might be reviewed in the supreme court prior to the final judgment, it could easily have said so in plain language; for it did say so in plain language with respect to matters other than provisional remedies, and it said so even with respect to injunctions. In this present case the order sought to be reversed is one sustaining and confirming an attachment, a provisional remedy; or, in other words, the overruling a motion to discharge an attachment, and it is an interlocutory order in a provisional remedy, and is not in any sense a final order.

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