W. B. Dickenson & Bro. v. Cowley

The opinion of the court was delivered by Brewer, J.: The facts in this case are briefly as follows: Defendant in error commenced a suit before a justice of the peace against one George Parker, and caused an attachment to be issued and levied on a certain lot of corn. Plaintiffs in error came in under ch. 164 of the laws of 1872, and [273] claimed the property. They claimed under a chattel mortgage given by Parker. The proceedings before the justice were commenced before the filing of this mortgage, and it is conceded by counsel for plaintiffs in error that if Cowley “acquired any right by virtue of said proceedings,” the plaintiffs by their laches had lost their right to the property. Could they, coming in as they did, question the regularity of the proceedings ? and if so, were these proceedings so far void as to give no lien to Cowley in the corn ? The first question, it seems to us, must be answered in the affirmative, to this extent, and no further: they could question them just as though they were attacking them in an independent collateral action. They did not, by coming in, waive all objections to the proceedings, and concede their regularity; nor did they place themselves in the shoes of the defendant in the action, and acquire his right to object to errors in the proceedings. They could not avail themselves of such irregularities as were simply errors sufficient for reversal, but only of such as were fatal to the process and the jurisdiction. Though coming in to the action, they claimed adversely to it. There was a fatal defect in the attachment proceedings. The grounds for the attachment alleged in the affidavit were, “that the defendant is a foreign corporation, or a nonresident of Brown county.” There are two objections to this, one that it is in the disjunctive. Drake on Attachments, § 101. The other that nonresidence in the eounty, does not warrant an attachment, but only nonresidence in the state. Laws of 1870, p. 182, § 3. There was therefore no warrant for the issue of the attachment, and the plaintiff in the suit obtained no lien. on the goods by the service of the writ. The facts of the case also bring it exactly within the decision in Repine v. McPherson, 2 Kas. 340. There was no personal service; the defendant did not appear; nor does it appear from ■any of the papers that he had any property within the jurisdiction of the court, nor that the property attached was his property. But it is insisted by defendant in error, that the mortgage of plaintiffs in error is void as against the creditors [274] of the mortgagor, under § 9 of the mortgage statute. (Gen. Stat. p. 584.) It is sufficient reply to this, that as the record stands there is no evidence as against plaintiff in error that defendant in error was a creditor. The mere bringing of a suit, is not evidence of that fact against a third party; and as there was no valid service or appearance, there has as yet been no valid judgment. Further than this we do not care to go. We see that many questions may be raised beyond this, such as these: Was not the mortgage filed within such reasonable time as to bring it within the statute ? Will the mere fact that it is shown by parol evidence that the defendant in error was, at the time of the commencement of his action, a creditor of the mortgagor, avoid the mortgage? It will be time enough to dispose of them, if they ever arise, when the facts are fully known. The judgment will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed. All the Justices concurring.