Wichita Wholesale Grocery Co. v. Records
| Decision Date | 06 October 1888 |
| Citation | 40 Kan. 119,19 P. 346 |
| Parties | THE WICHITA WHOLESALE GROCERY COMPANY v. H. D. RECORDS, as Assignee of D. F. Swank |
| Court | Kansas Supreme Court |
Error from Barber District Court.
ON April 8, 1887, H. D. Records, as assignee for the benefit of the creditors of D. F. Swank, on the hearing of his motion before the Hon. C. W. Ellis, judge of the district court of Barber county, at chambers, in the city of Medicine Lodge obtained an order for the dissolution of plaintiff's attachment theretofore issued out of the district court of said county, and levied upon certain goods, chattels and real estate of said D. F. Swank in an action then pending in said court in which the Wichita Wholesale Grocery Company was plaintiff and said D. F. Swank was defendant. This order the plaintiff Company brings here for review. The facts sufficiently appear in the opinion.
Order dissolving attachment reversed.
Houston & Bentley, and A. L. Noble, for plaintiff in error.
Denton & Jones, and Ellis & Overstreet, for defendants in error.
OPINION
The plaintiff in error commenced an action in the district court of Barber county against D. F. Swank, upon an account for goods sold and delivered, and on the same day filed an affidavit and bond for attachment. The grounds set forth in the affidavit for attachment were, that Swank had been guilty of fraudulent disposition and concealment of his property etc. It appears in evidence that Swank had been doing business at Lake City and Deerhead, in Barber county; that on the 7th day of February, 1887, he exchanged his goods and store at Deerhead with W. L. Clinkscales for 480 acres of land in Barber county; and that the deed therefor, at the suggestion of the defendant, was made to Mary Swank, his wife. On the 11th day of February an assignment of all his goods and property was made to H. W. Bartells, and on the 14th this action, with others, was commenced, and the property attached. The court afterward appointed H. D. Records assignee instead of H. W. Bartells, and Records made a motion to dissolve the attachment. The plaintiff says that the assignee had no right to make such a motion; that only the defendant could do so, and cites § 228 of the civil code; but § 532 provides: "A motion is an application for an order, . . . by any party to a suit or proceeding, or one interested therein or affected thereby." That is comprehensive enough to authorize an assignee to make the motion in order to discharge the property which has come into his hands by the assignment. We call attention to Harrison v. Andrews, 18 Kan. 535, and Long Brothers v. Murphy, 27 id. 375. At the hearing the judge placed the burden of proof upon the plaintiff. (McPike v. Atwell, 34 Kan. 142.) Of this ruling the plaintiff also complains, stating as a reason, that the affidavit of the assignee was made upon information and belief. The motion was made upon the ground that the affidavit for attachment was untrue, and the motion was followed by the affidavit of Records, which was in these words:
"H. D. Records, being duly sworn upon his oath according to law, says: That he is the assignee of D. F. Swank, defendant in this case; that he has read the above and foregoing motion, and knows the contents thereof; that he is informed and believes, and therefore swears, that the facts stated and set forth in said motion are true."
The affidavit of defendant specifically denying each of the grounds for attachment in the affidavit of plaintiff was introduced in evidence; therefore the ruling could not have materially prejudiced the plaintiff.
Upon the hearing of this motion, nearly all of the evidence was embodied in affidavits; and therefore the case comes to us in about the same condition as it was heard before the district court. Concerning the conveyance of 480 acres in Barber county to Mary Swank, wife of the defendant, W. L. Clinkscales says in his affidavit, that the defendant told him at the time the deed was executed that he wished to have it made to his wife, giving as a reason, "that he wanted to prove up on a claim, and that he...
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