Swearingen v. Howser

• Decision Date: 09 July 1887
• Citation: 14 P. 436,37 Kan. 126
• Parties: J. M. SWEARINGEN v. J. C. HOWSER, et al
• Court: Kansas Supreme Court

14 P. 436

37 Kan. 126

J. M. SWEARINGEN v. J. C. HOWSER, et al

Supreme Court of Kansas

July 9, 1887

Error from Harper District Court.

ACTION by Swearingen against Howser and another, to recover money. The defendants filed a motion to dissolve an attachment in said action, which had been issued for the plaintiff. This motion was heard June 2, 1885, when the plaintiff asked leave to amend the attachment affidavit. The district judge refused to permit this amendment, and dissolved the attachment. The plaintiff brings the case here. Other facts are stated in the opinion.

Judgment reversed, and cause remanded for further proceedings.

Campbell & Glenn, for plaintiff in error.

Finch & Finch, and Sam S. Sisson, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an action brought by the plaintiff against the defendants to recover the sum of one hundred and fifty dollars. Plaintiff also filed his affidavit for an attachment with a sufficient undertaking, and thereupon the clerk of the district court issued an order of attachment, and the sheriff of Harper county attached a portion of a stock of groceries belonging to the defendants. Afterward the attorneys for the defendants made a motion before the district judge at chambers, in the city of Wellington, Sumner county, to dissolve the attachment on the ground that the affidavit therefor had been sworn to before William M. Glenn, notary public, but one of the attorneys of record for the plaintiff. On the hearing of the motion, plaintiff asked leave of the court to amend the attachment affidavit, by swearing to it before some officer duly authorized to administer oaths, other than his attorney in the case. The district judge refused to permit the affidavit to be amended, and ordered the attachment to be dissolved. At the time of hearing this motion the district court was in session in Sumner county, with a judge pro tem. on the bench. The plaintiff brings the case here.

Plaintiff complains that the district judge at chambers was acting without jurisdiction of the case, as a judge pro tem. was holding court at that time in the same county. There is no showing that the judge pro tem. was not properly selected and sitting in the case in which the judge of the district court was disqualified. In the absence of any proof to the contrary, we must assume that the judge pro tem. was properly holding court at the time. (Garvin v. Jennerson, 20 Kan. 371.) The parties have no cause to complain because the judge pro tem. was trying a case in which they had no interest, so long as the legally elected judge of the district court heard and determined the motion in dispute, at chambers. This action was brought in Harper county, one of the counties in the nineteenth judicial district. This motion could not have been heard before any other person than the judge of the district. (Comp. Laws of 1879, ch. 28, § 2.) The plaintiff did not question the power of the judge at chambers, until the decision was rendered against him. He makes that objection for the first time in this court.

Plaintiff makes the further objection, that the district judge refused to permit him to file an amended affidavit. The decision of this question compels us to determine whether the affidavit upon which the order of attachment issued was voidable only, or wholly void. By § 1 of the act relating to oaths, the general power, without any exception or limitation, is given to notaries public, "to administer oaths pertaining to all matters wherein an oath is required."

By § 348 of the civil code, the general power, without any exception or limitation, is given to notaries public to take depositions.

By § 345 of the civil code, the general power, without any exception or limitation, is given to any person authorized to take depositions to act as the officer before whom affidavits may be taken and authenticated.

Under § 350 of the civil code, however, "the officer before whom depositions are taken must not be a relative or attorney of either party, or otherwise interested in the event of...