Williamson v. The Kansas & Texas Coal Company

• Decision Date: 20 September 1897
• Docket Number: 175
• Court: Kansas Court of Appeals
• Parties: D. C. WILLIAMSON v. THE KANSAS & TEXAS COAL COMPANY

50 P. 106

6 Kan.App. 443

D. C. WILLIAMSON v. THE KANSAS & TEXAS COAL COMPANY

No. 175

Court of Appeals of Kansas, Southern Department, Eastern Division

September 20, 1897

September 20, 1897,

Error from Crawford District Court. Hon. J. S. West, Judge. Affirmed.

Plaintiff's petition alleges that the defendant in error had sued the plaintiff in error in the Circuit Court of Benton County Arkansas, obtained a personal service of summons, and attached certain personal property of plaintiff. The case proceeded to final judgment, and the attached property was sold by order of the court and the proceeds applied toward the payment of the judgment. The property attached was not exempt front attachment in Arkansas, but would have been exempt in Kansas. Plaintiff was a citizen of Kansas and defendant a corporation organized under the laws of Missouri. The property attached was worth about three hundred dollars and this suit was brought to recover that sum as damages for the alleged wrongful taking and disposition of the property in the aforesaid action. The defendant was conducting a general mercantile business in the city of Pittsburg, Kan and plaintiff was indebted to said Company in the sum of eleven hundred dollars, which indebtedness was contracted and payable in the State of Kansas. While the plaintiff was temporarily in the State of Arkansas, he was sued by the Company and the property attached in that suit was the only property which he had that had not already been attached by the Company in the State of Kansas in an action brought by it against plaintiff in error and another, as partners. At the time of the levy, plaintiff notified the sheriff of Benton County, Arkansas, and the defendant, that he claimed the property as exempt, and demanded the possession thereof and that the same should not be levied upon; but his requests and claims were disobeyed and denied, and the property was taken by the sheriff and subsequently sold under an order of the court, and the proceeds applied to the payment of the judgment which was obtained in said action by defendant against plaintiff. The petition admitted that plaintiff in error had made no defense to the action, and filed no motion to discharge the attachment. To this petition defendant demurred on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained this demurrer, plaintiff excepting. The record does not show that the court entered final judgment.

Order approved and affirmed.

T. W Cogswell, for plaintiff in error.

Morris Cliggitt, for defendant in error.

OPINION

MILTON, J.

It is contended by counsel for defendant that the proceedings in error should be dismissed for the reason that no judgment was entered in the case. We think that proceedings in error may be taken from the ruling of the trial court sustaining a demurrer to the petition on the ground stated, notwithstanding the fact that the record fails to show that a final judgment for costs was entered in the case.

An examination of the petition convinces us that it fails to show any right of recovery against the defendant, and any lack of right on the part of defendant to institute and maintain the attachment proceedings in the State of Arkansas. It is distinctly alleged that "the defendant is a corporation organized and existing under and by virtue of the laws of the ...