Becker v. Steele

The opinion of the court was delivered by Horton, C. J.: The facts in this case are substantially as follows: The Exchange Bank of Lenora commenced an action against A. C. Lappin before a justice of the peace, and obtained an order of attachment, which was levied upon the property in controversy by the constable, John Becker; before the trial a motion was filed by the defendant to discharge the attachment, upon the ground that the facts alleged in the affidavit for the attachment were untrue; upon the hearing of the motion it was overruled, the justice deciding that the attachment was valid. Subsequently the action was tried before the justice, and judgment rendered in favor of the defendant and against the plaintiff, upon the ground that it was prematurely brought; the judgment also directed that the attached property be returned. The Exchange Bank gave notice that it would appeal from the judgment of the justice to the district court, and within the ten days allowed by law perfected its appeal, filing an ordinary appeal bond, reciting the judgment, etc. — 175 — The case was tried in the district court, and the Exchange Bank recovered against the defendant $300, the amount sued for. After the justice of the peace had rendered judgment against the plaintiff, the constable continued to hold possession of the property under the attachment proceedings. After the attachment had been levied by the constable, A. C. Lappin executed a chattel mortgage thereon to W. M. Steele and J. W. Walker, partners as Steele & Walker, which mortgage was duly filed in the office of the register of deeds. After judgment was rendered by the justice-of the peace, Messrs. Steele & Walker demanded the property of the constable, and, their demand not being complied with, commenced an action against the constable to recover possession of the property. Upon the trial, the district court decided that the constable had no right to the possession of the property, for the reason that the Exchange Bank failed to recover judgment upon its claim before the justice of the peace. The sole question for decision in this case is, did the appeal of the Exchange Bank from the judgment of the justice of the peace transfer or carry the attachment proceedings to the district court, so as to authorize the constable to retain the possession of the attached property pending the appeal ? Under the decisions of this court, already pronounced, the question must be answered in the negative. In Butcher v. Taylor, 18 Kas. 558, the justice, before the trial, discharged the attachment; afterward a trial was had upon the merits of the action, which resulted in favor of the plaintiff; the plaintiff then took an appeal to the district court from the decision of the justice on the attachment proceedings, but not from the judgment of the justice on the merits of the action; and it was held that no appeal would lie from the order discharging the attachment. In Gates v. Sanders, 13 Kas. 411, the order of attachment was discharged by the justice, but a judgment was rendered in favor of the plaintiffs for the amount of their claim. From this judgment they appealed, and filed an ordinary appeal bond, — 176 — reciting the judgment, etc., but making no mention of or reference to the attachment or its discharge. This court decided that the appeal did not take up to the district court- for reexamination or review the proceedings on attachment in that case, but that they were ended by the decision of the justice. In the opinion, delivered by Mr. Justice Brewer, it was said: “ The attachment is but an ancillary proceeding, and may stand or fall without affecting the progress of the suit. The judgment is rendered for or against the plaintiff and upon the sufficiency of his cause of action, without reference to the disposition of the attachment.” In Railroad Co. v. Casey, 14 Kas. 504, an attachment was issued and judgment rendered in favor of the plaintiff against the defendant. The judgment also ordered that the attached property be sold to satisfy the same. The defendant appealed to the district court, presumably filing an ordinary appeal bond. The court in that case held that as the defendant, who appealed, gave ample security for the prosecution of his appeal and' for the payment of the judgment, the attachment was thereby discharged. Mr. Justice'Valentine, delivering the opinion in that case, said, among other things: ' Roía attacked piopeity. “And as no provision is made by law for the officer who holds the attached property at the time the appeal is taken to turn the property over to some officer of the district court, it would hardly seem that it was intended that the district court should take charge of the attached property. And it can hardly be supposed that after all the proceedings of the justice’s court are taken by appeal to the district 00111.^ that any officer of the justice’s court will continue to have possession and control of the attached property.” In Brown v. Tuppeny, 24 Kas. 29, Brown was summoned as a garnishee in an action pending before a justice of the peace, wherein Tuppeny was plaintiff and Hill defendant. Brown answered as garnishee, admitting the possession of a draft of $ 100 belonging to Hill, which, when paid, would be owing by him to Hill. Upon the trial between Tuppeny and Hill, judgment was rendered in favor of Hill; and there — 177 — upon Brown was discharged, as garnishee, from all liability. Tuppeny filed an ordinary appeal bond, and this court held that “the proceedings in the garnishment were not taken up to the district court, the appeal being simply from the final judgment in the action.” Section 45, chapter 81, Comp. Laws of 1885, relating to civil procedure before justices, provides, among other things, that if “judgment be rendered for the defendant in the attachment, the garnishee shall be discharged and recover costs.” 1' toohmentproceediDgs not tríyb Section 46 of said chapter 81, reads: “If judgment be rendered in the action, for the defendant, the attachment shall be discharged, and the property attached, or its proceeds, shall be returned to him.” Therefore it appears that both the garnishee must be discharged and the attachment discharged when judgment is rendered by a justice of the peace for the defendant. If an appeal from the final judgment of a justice of the peace will not transfer or carry the garnishment proceedings to the district court, which have not been dissolved or discharged prior to the judgment, it necessarily follows that an appeal from the final judgment of the justice of the peace will not transfer or ° , x t° district court attachment proceedings which have not been discharged at the rendition of the judgment. In the case at bai, after the justice of the peace rendered judgment for the defendant, he also rendered judgment that the attached property be returned. Subsequently the justice directed the constable to hold possession of the attached property until the expiration of the ten days within which the plaintiff had the right to appeal. The Exchange Bank filed its appeal bond within the ten days, but how soon after the rendition of judgment is not shown. For aught that appears in the record, the appeal bond may not have been filed until the last day that an appeal was allowable; therefore the constable may have held possession of the attached property after the judgment was rendered in favor of the defendant for several days before any appeal bond — 178 — was approved or filed. As the j udgment in favor of the defendant discharged the attachment and thereby released the attached property, it clearly appears that the constable had no legal process in his hands authorizing him to hold the attached property between the rendition of the judgment in favor of the defendant and the filing of the appeal bond, even if the appeal bond could have carried the attachment proceedings to the district court. In Roll v. Murray, 35 Kas. 171, the action was commenced before a justice of the peace, and an order of attachment obtained; subsequently, upon the motion of the defendant, the attachment was discharged; afterward a judgment was rendered in favor of the plaintiff and against the defendant; within the ten days the plaintiff filed an appeal bond, attempting to take an appeal both from the order of the justice discharging the attachment, and also from the judgment of the justice upon the merits; the appeal bond was sufficient for both these purposes, if an appeal from an order of the justice of the peace discharging an attachment was allowable. This court held that the appeal did not give to the district court power to review and retry the attachment proceedings instituted before the justice of the peace. Mr. Justice Valentine, in delivering the opinion said, among other things: “There is no provision in the statutes for taking an appeal from the order of a justice of the peace in any provisional remedy or in any ancillary proceeding, and no provision anywhere for retrying in the district court upon an appeal from a justice of the peace, any question that pertains only to some provisional remedy, or to some ancillary proceeding. The appeal is from a final judgment only, and from a judgment on the merits only, and the trial afterward to be had on the appeal is only upon the merits. ... In our opinion attachment proceedings cannot be taken to the district court at all on appeal.” In view of the decisions in the foregoing cases, it is unnecessary to refer to the authorities from other states to which we are cited. If the construction given to the statute works — 179 — injustice in attachment procedings, the remedy is with the legislature. The judgment of the district court will be affirmed. Johnston, J., concurring.