Wm. W. Kendall Boot & Shoe Co. v. August

• Decision Date: 11 March 1893
• Parties: THE WM. W. KENDALL BOOT AND SHOE COMPANY et al. v. ELI J. AUGUST et al
• Court: Kansas Supreme Court

32 P. 635

51 Kan. 53

THE WM. W. KENDALL BOOT AND SHOE COMPANY et al. v. ELI J. AUGUST et al

Supreme Court of Kansas

March 11, 1893

Error from Atchison District Court.

PROCEEDINGS in attachment by the Boot and Shoe Company and others against August and another. There was an order discharging an attachment, and plaintiffs bring error. The opinion, filed March 11, 1893, states the facts.

Judgment affirmed.

SYLLABUS

1. ATTACHMENT--Verification of Motion to Discharge. A motion to discharge an attachment, which contains an explicit denial of the allegations in plaintiff's affidavit for attachment, is sufficient to raise an issue as to the truth of the grounds laid for attachment, and a verification of the motion or of the allegations of denial is not essential.

2. MOTION TO DISSOLVE, Who May Make. One claiming to be the owner of property which has been attached, although not a party to the proceeding, may move the court to discharge the attachment; and the fact that after the motion to discharge was filed he began an action of replevin and obtained the possession of the attached property under the writ issued in that action will not prevent the hearing and decision of the motion to discharge.

L. F Bird, for plaintiffs in error:

1. No affidavit denying the grounds of attachment was made or filed by Jacob August, or by the defendant, or by anyone for the defendant. Until an affidavit denying the grounds of the plaintiff's affidavit for attachment was made or filed, there was no issue to try. The filing of this affidavit by the defendant, or some one on his behalf, is imperative. 1 Wade, Attach., ch. 20, § § 276 et seq. And no case can be found in the Kansas reports or any other reports where an attachment was dissolved without an affidavit being filed by the defendant, or some one on his behalf, denying the grounds of attachment, and joining an issue for trial. Thus, in Watson v. Jackson, 24 Kan. 443, an affidavit was filed by the defendant. In Grocery Co. v. Records, 40 Kan. 119, an affidavit was made and filed by the assignee. In Long v. Murphy, 27 Kan. 375, the defendant filed a proper motion and affidavit to discharge the attachment, and the attachment was dissolved as to the defendant. Of course, in that case, the plaintiff's attachment having been dissolved, it would be immaterial to him to what person the court directed the property to be delivered, as such order directing the delivery of the property could not affect him.

See, also, Steuben County Bank v. Alberger, 55 How. Pr. 484; Capehart v. Dowery, 10 W.Va. 130, 135; Claussen v. Easterling, 19 S.C. 520.

2. No motion having been made by the defendant to dissolve the attachment, and no affidavit having been filed on his behalf denying the grounds of attachment, and Jacob August having, long prior to the day of the hearing of his motion to discharge the attached property, replevied the property and taken it into his possession, there was no longer anything in the proceeding that interested Jacob August or affected him in the least. Civil Code, § 532.

3. Conceding that Jacob August, prior to the time of the institution of his action of replevin, had a right to file a proper motion and affidavit for the discharge of the attached property, yet, having elected to commence an action of replevin, he was bound by such election, and cannot now insist that the property attached was wrongfully in the hands of Sheriff Barry. Walsh v. Railroad Co., 59 Mo. 472; Beal v. Pearre, 12 Md. 566; Ware v. Perceival, 61 Me. 392; Goodrich v. Yale, 97 Mass. 16, 17; Bennett v. Hood, 1 Allen, 47, 48; Smith v. Way, 9 id. 473.

W. W. & W. F. Guthrie, for defendants in error:

1 Wade on Attachment (chapter 20, § § 276 et seq.) is cited, to the effect that the filing of an affidavit by the defendant, or some one on his behalf, is imperative. There is not a syllable to this effect in the whole of such chapter 20. In fact there is not a case in the Kansas reports in which the question of filing an affidavit denying the grounds of attachment, in support of the motion for the dissolution thereof, is discussed or commented on as a necessary auxiliary to the motion, or in any other respect than as affecting the burden of proof upon the hearing of the motion. In Lonq v. Murphy, 27 Kan. 375, cited for plaintiffs, instead of the case as reported showing an affidavit as filed with the motion, there is not a word in the case to the effect that any such affidavit was filed at all. The same is true in Doggett v. Bell, 32 Kan. 298, and in Hillyer v. Biglow, 47 id. 473.

In fact, an affidavit for an attachment is not a "pleading," and need not be controverted in the technical sense of "joining an issue." Boston v. Knight, 3 Kan. 227, and Johnson v. Laughlin, 7 id. 359.

The second point attempted to be made in the Kendall brief is involved in the third ground, and together they raise the question whether the fact that Jacob August had commenced an action of replevin for the goods attached before (on the contrary, four days after) the filing of his motion in the attachment action precluded him from filing such motion. Even if the replevin suit had been directed against the sheriff in his official capacity, August would still have been interested in discharging his property from the lien still claimed to exist against it. Any of the numerous defenses in replevin might be made by Barry in the replevin suit. Meanwhile, the Kendall company, as an attaching creditor, was claiming a lien on goods claimed by Jacob August as his own. Under the decisions of this court, Jacob August very properly moved in the attachment action to discharge and cancel this lien. The court has long since decided, in one of the cases cited in the Kendall brief itself, that a party may have both remedies. Watson v. Jackson, 24 Kan. 442. In this case it was held that the fact that there was a motion to dissolve an attachment did not prevent the party filing the motion from thereafter suing in replevin, and this although his motion to dissolve the attachment had been overruled, and if both in turn, then both concurrently. And to the same effect is White-Crow v. While- Wing, 3 Kan. 276.

The assignee clearly had the right to move in the matter.

Under § 532 of the code, a person not a party to the suit may move therein if interested or affected thereby. This was first held to include a third party interested in land, the sale of which on execution against another was about to be confirmed. White-Crow v. White- Wing, 3 Kan. 276; Harrison v. Andrews, 18 id. 535. And afterward to include a third party whose land was attached in a suit against another. Long v. Murphy, 27 Kan. 381.

The fact that the defendant in attachment has executed chattel mortgages on all his property would not preclude him from moving to discharge an attachment. His contingent interest in the property would support the motion. Boot and Shoe Co. v. Derse, 41 Kan. 152. An assignee for the benefit of creditors is entitled to move to discharge from attachment the property assigned to him. Grocery Co. v. Records, 40 Kan. 119.

JOHNSTON, J. All the Justices concurring.

OPINION

JOHNSTON, J.:

For several years prior to January 1, 1890, Eli J. August was engaged in the sale of boots and shoes at Atchison, and to quite an extent on borrowed capital. He had two business houses, which are spoken of as the "uptown" and "down-town" stores. In December, 1889, he became financially embarrassed, and unable to meet the accruing claims of creditors. On December 30, 1889,...