Cline v. F. S. Harmon & Co.

The opinion of the court was delivered by Anders, C. J. — This was an action by appellees against appellant in the court below for the recovery of $168, upon an account for goods sold and delivered. The defendant in his answer denied owing the plaintiffs the amount claimed, but admitted an indebtedness of $115. At about the time the defendant’s answer was filed the plaintiffs filed a bond and affidavits, and caused an order and warrant of arrest to issue, upon which the defendant was arrested and held to bail in the sum of $300. The defendant moved the .court to vacate the order of arrest for the reasons, as alleged, that there was no law authorizing arrest and imprisonment in civil actions before judgment; that the proof upon which the order was issued was insufficient, and showed no pertinent facts; that the bond for arrest was defective, and that the allegations upon which the order was issued were untrue. The motion was denied by the [157] court, and the defendant, before final judgment in the action, appealed to this court, and assigns the ruling of the court in granting the order of arrest and in refusing to vacate the same as error. Counsel for appellees move to dismiss the appeal upon two grounds s (1) That the order from which the appeal is sought to be taken is not appeal-able, and the court is without jurisdiction! and (2) that the action in which said order was made is a civil action at law for the recovery of money where the original amount in controversy does not exceed the sum of $200, and the action does not involve the legality of a tax, impost, assessment, toll, municipal fine, or the validity of a statute. Whether this court has jurisdiction to hear and determine the question now before it, must depend upon the construction to be given to the statute in reference to appeals. The act of the legislature concerning the removal of causes from the superior courts to the supreme court (as amended March 27, 1890), following substantially the language of the state constitution, provides that “an appeal may be taken to the supreme court from the superior courts in all actions and proceedings, excepting that its appellate jurisdiction shall not extend to civil actions at law for the recovery of money or property when the original amount in controversy or the value of the property does not exceed the sum of two hundred (200) dollars, unless the action involves the legality of a tax, impost, assessment, toll, municipal fine, or the validity of a statute.” In the case of Windt v. Banniza, ante, p. 147, recently decided by this court, and which was an appeal, before final judgment, from an order discharging an attachment, we had occasion to interpret the meaning of the word “proceedings” as used in the statutes, and we then held it did not embrace those proceedings merely incident to an action and not affecting its merits, but only those known as special proceedings, as distinguished from ordinary actions at law. The appeal in that case was dismissed for want [158] of jurisdiction in the court to review the alleged errors; and as it is evident that arrest and bail is á provisional remedy only, and not a special proceeding, and like an attachment merely ancillary to the action in which it is invoked, it follows that this appeal should likewise be dismissed. While it seems more harsh and oppressive to arrest an individual than to seize his property, still that is no sufficient reason, in the absence of more specific legislation upon the subject, for drawing a distinction as to the right of review by this court between orders denying or sustaining motions to dissolve attachments and those refusing to vacate orders of arrest. Our conclusion is in accordance with the view of the supreme court of Kansas, as announced in the ease of Burch v. Adams, 40 Kan. 639 (20 Pac. Rep. 476), in which the precise question was before the court. See Allen v. Tyler, 32 N. J. Law, 499; Clason v. Shotwell, 12 Johns. 31. If, as appellant alleges, there is no law authorizing arrests in civil actions in this state, and he has been illegally deprived of his liberty, he is not without the means of redress, but we can afford him no relief at this time. For the foregoing reasons, the appeal must be dismissed at the cost of appellant. Hoyt, Dunbar, and Stiles, JJ., concur.