The First National Bank of Formoso v. Livingood

• Decision Date: 09 July 1910
• Docket Number: 16,648
• Citation: 83 Kan. 118,109 P. 987
• Parties: THE FIRST NATIONAL BANK OF FORMOSO, Appellee, v. J. M. LIVINGOOD et al., Appellants
• Court: Kansas Supreme Court

109 P. 987

83 Kan. 118

THE FIRST NATIONAL BANK OF FORMOSO, Appellee, v. J. M. LIVINGOOD et al., Appellants

No. 16,648

Supreme Court of Kansas

July 9, 1910

Decided July, 1910.

Appeal from Jewell district court;

Affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

ATTACHMENT--Sale of Property--Dissolution--Determination of Plaintiff's Right to Proceeds under a Chattel Mortgage. Where an action in attachment is begun, and property is attached therein and is sold by order of court and converted into money, and thereafter the attachment is dissolved and the action dismissed, a court may, while the money remains in the custody of its officers, hear and determine, on motion therefor, the claim of the plaintiff (who claims to have a chattel mortgage on the property) as to his right to have the money--the proceeds of the sale--delivered to him instead of to the defendant in the action.

R. S Hanley, and R. W. Turner, for the appellants.

Robert Postlethwaite, for the appellee; J. C. Postlethwaite, of counsel.

OPINION

SMITH, J.:

The appellee brought an attachment proceeding upon two promissory notes, before the maturity thereof. The sheriff levied the attachment upon several head of live stock on which the plaintiff held a mortgage to secure the same notes. While the action was pending the plaintiff obtained an order from the court for the sale of the live stock, which order was executed by the sheriff, the stock was sold, and the proceeds of the sale ($ 393.25) were deposited with the clerk of the court. Thereafter, on the motion of the defendants, the court dissolved the attachment, for the reason that the grounds upon which it was allowed were not sustained by the evidence. Thereupon the plaintiff dismissed the action, and judgment was rendered against it for costs.

At the next ensuing term of the court, the money derived from the sale of the stock being still in the hands of the clerk, the plaintiff procured an order from the court for the clerk to pay the money to it. On the hearing of the motion for such order the plaintiff presented evidence that all the live stock sold was mortgaged to it by the defendants to secure the payment of the notes, and that the mortgage had been of record during all the time of the proceedings.

The defendants contend that upon the dissolution of the attachment and the rendition of the judgment in their favor the action was terminated, that at the next term of the court there was no action pending in which the plaintiff could file a motion, and that the court had entirely lost jurisdiction in the matter. Upon the determination of the question whether the court had jurisdiction to dispose of this money in the hands of the clerk of the court depends the decision of this case.

In an attachment proceeding the property is attached as belonging to the defendant, and the entire case proceeds upon that theory until at least this presumption is overcome by evidence. Hence it is provided in section 213 of the code of 1909:

"If judgment be rendered in the action for the defendant the attachment shall be discharged, and the property attached or its proceeds shall be returned to him."

Upon the conversion of the property into money through the sale thereof by the sheriff under the orders of the court, the money took the place of the property, and was held under the attachment in the custody of the law; and upon the rendition of judgment for the defendants they were entitled to an order for a return to them of the money, as they would have been entitled to an order for a return of the property if no sale had been had. This right, however, is not absolute, but pending a motion for a rehearing or upon appeal the order may be stayed. (Washer v. Campbell, 40 Kan. 747, 751, 21 P. 671; Miller v. Dixon, 2 Kan.App. 445, 42 P. 1014.) So long as the property (or the proceeds thereof) remains in the custody of the law, the court has jurisdiction over it to make any proper order...