Chapman v. H. D. Lee Mercantile Co.

The opinion of the court was delivered by McElkoy, J. : This case was before this court in In re Chapman, 4 Kan. App. 49. The case is now before us for a review of the order and judgment of the-district court in refusing to vacate the order of arrest- and in awarding execution against the person of Chapman. The plaintiff in error contends that the trial court-erred in permitting the mercantile company to file an amended or new affidavit for an order of arrest and to use it on the hearing of the motion to vacate the order, and in permitting the mercantile company to introduce evidence on the hearing of the motion otberthan that contained in the papers in the case. A defendant may, at any time before judgment, by motion,, apply to the court in which the suit is brought, if in session, and in vacation to the judge thereof, to vacate the order of arrest, or to reduce the amount of bail. “If the motion be made upon affidavit on the part of the defendant, but not otherwise, the plaintiff' may oppose the same by affidavits or other evidence in addition to that on which the order of arrest was. made.” (Gen. Stat. 1897, ch. 95, § 174.) Chapman made application to vacate the order of arrest, and on the hearing the mercantile company was permitted to-file an amended affidavit. Our statute is very liberal in permitting amendments. An affidavit for an oi’der of arrest may be amended upon application therefor256 .and by permission of the court. (Baker Mfg. Co. v. Knotts, 30 Kan. 356.) The defendant stated in his motion to vacate the •order of arrest that the papers in the case would be used in evidence on the hearing of the motion. Upon the hearing of the motion, all the papers and files of the case, if competent, were proper for the consideration of the court. The amended affidavit became one of the papers in the case when filed, and was proper evidence for consideration on the hearing of the motion as one of the papers in the case. The clerk of the district court, apparently for convenience, at the hearing filed a certificate showing the amount of the accrued costs. The certificate was simply a tabulation •of what the records in the case showed. The trial court had a right to take notice of the accrued costs in the case, and the formality of the clerk in certifying to the amount of costs, and the court’s permitting such certified statement to be read at the hearing, were at most irregularities only, which could not have prejudiced the substantial rights of either party. The affidavit of arrest and papers in the case showed that the defendant’s interest in the attached property was insufficient to satisfy plaintiff’s claim. The tabulated statement of the clerk purported to show only the amount of the deficiency, and of course the amount of the deficiency was immaterial if any deficit existed. The amount of plaintiff’s claim was $1282.65; the value o'f the attached property was $1450. The record, papers and files of the case on the hearing showed that the attached property was mortgaged, and that the interest of Chapman in the property was, in fact, insufficient to pay the plaintiff’s claim. The court committed no error in permitting the amendment nor in the admission of evidence. [257] Complaint is also made that the court erred in overruling and denying the motion to vacate the order of arrest. The contention is that the levy of the attachment upon property of the appraised'value of the debt and probable costs was, in law, a satisfaction of the debt. The attachment is the grasp of the law laid upon the goods of the debtor, while the arrest is the grasp.of the law upon his person. Where, as in the present case, they were issued as mesne processes, the attachment simply holds the property by lien as security for payment, if the plaintiffs recover judgment. The warrant holds the debtor’s person for the same purpose until he gives bond to the effect that, if judgment shall be rendered in the action against him, he will render himself amenable to the process of the court thereon, or until he deposits with the sheriff or in the court the amount of money mentioned in the order of arrest. The attachment gives the creditor the security of an immediate grasp on such property as the sheriff can find, and the warrant gives him security for the payment of the judgment when rendered. There is nothing repugnant in these methods, and both may be necessary to a complete remedy. That they are not necessarily exclusive of each other, is shown by the consideration that the attachment may be dissolved and the suit go on as upon summons. If an attachment should issue on account of the fraudulent contraction of the debt, and should be dissolved, the action continuing as if upon a summons, and thereafter the debtor should fraudulently attempt to remove or conceal his goods, there could be no doubt that a warrant of arrest would lie. We see no reason why the same result should not follow where the attachment fails to grasp sufficient property to [258] satisfy the claim or from any other cause proves to-be an inadequate remedy. The cases cited on behalf of the defendant are not analogous, for they rest on the common-law doctrine that a levy of an execution or attachment is presumed to be a satisfaction, and therefore there is no debt to-support the issue of the warrant. Many of the authorities cited tend to show that the contention of plaintiff in error is not tenable. The only authority cited by counsel which seems to support his claim is-the case of Yourt v. Hopkins, 24 Ill. 326. An examination of this case shows that the plaintiff collected on execution from the attached property the full-amount of his claim, and thereafter he was required to surrender his other securities. The mere levy of an attachment does not satisfy the debt. In order for the attachment to have that effect, it must be shown that the property levied upon was sufficient for that purpose. (Wade on Attachment, § 34; Drake on Attachments, §§ 190, 222, 228; Maxwell v. Stewart, 22 Wall. 77; Grieb v. Knuttner, 19 Atl. Rep. 1041.) The showing upon the motion presented a very proper case for the court to reduce the amount of bail,, if application or request had been made therefor, but was insufficient to support a demand that the court vacate the order of arrest as a matter of right. The-record in this case discloses no error prejudicial to the rights of the plaintiff in error. The motion- for a new trial was properly overruled. The judgment must be affirmed; Wells, J., concurring.