Stapleton v. Orr

Opinion by Holt, C.: The defendants say that we cannot investigate the merits of the action, for the reason that no motion for a new trial has been filed. Where an error is apparent upon the face of the record, a motion for a new trial is unnecessary. In this case the judgment was based upon the pleadings, and the error appears, and an exception was taken to the judgment at the time of its rendition. It is claimed that we cannot examine the testimony submitted before the district court upon the motion to dissolve an attachment. We could not, we think, do so in order to determine whether or not the order of dissolution was correct; but as the defendant has made it a part of his answer, we certainly can treat it as a part of the pleadings in this case. The defendants say, however, that the evidence was not properly a part of the transcript; but in their amended answer they aver that “the entire evidence taken upon the motion to dissolve the attachment is hereto attached, marked ‘ Exhibit A, and made part and parcel of this answer.” From [173] the pleadings and the judgment it is clearly shown that the judgment is based upon the fact that the issues in the case had been once determined upon the motion to dissolve the attachment, and the court held that the previous order vacating the attachment must control and be decisive of the merits of the case. The defendants’ theory is, that because the testimony upon the motion to dissolve was directed exclusively to that portion of the affidavit which states that the defendant Orr had fraudulently contracted the debt and incurred the liability and obligation for which the above-named suit had been brought, and the charge in the petition that Orr had fraudulently misled the plaintiffs by making false entries in the firm’s books, and concealing and misrepresenting the accounts, property and assets of the firm — both allegations of fraud being substantially the same — that the issues joined by the pleadings had been practically and in fact determined by the order vacating the attachment in favor of defendant Orr, for the reason, they say, that unless the plaintiffs should establish that Orr practiced fraud and deceit in the settlement between the partners, they would fail in their action. It is further urged by the plaintiffs, that because all the parties after the dissolution of this attachment entered into an agreement in open court to submit the issues to a referee, they are estopped by such agreement to raise the question of a prior determination of the case. It will be unnecessary to pass upon this phase of the case, though it is pressed with earnestness, and many authorities cited by the plaintiffs to sustain their theory; but without examining or attempting to determine it, we prefer to place our decision squarely upon the ground that an order on a motion to vacate an attachment does not determine the merits of the action itself. In actions of this nature it is conceded that the evidence would be substantially the same, so far as the allegations of fraud are concerned, on a motion to dissolve and vacate an attachment, as it would be on the trial of the action upon its merits; yet the manner of introducing the evidence might be different, and the trial upon the motion unlike the one upon the pleadings. On a motion [174] to vacate an attachment affidavits are admissible — very often the only evidence admitted. In this case, however, the evidence was given orally in court. Upon the trial of an action upon the issues joined, it may be by the court alone or by the court and a jury, as to all the issues of fact or certain questions of fact submitted to them by the court, or as in this case, all the issues of law and fact may be submitted to a referee. If an order dissolving an attachment should be the final determination of the case, then the plaintiffs would be deprived of a trial in the due and regular way. They could not have their evidence submitted to a jury or referee; it would be disposing of the cause in a collateral and summary manner, as the proceedings in attachment are simply auxiliary to the action itself. This is not a new question in this state. In Bundrem v. Denn, 25 Kas. 430, it is decided that on a motion to vacate an attachment the court cannot inquire into the validity or justice of the cause of action for the purpose of investigating its merits, but may examine into the alleged existence of the grounds of attachment set forth in the affidavits, even though they might trench upon that ground for the purpose only of determining whether the attachment should be vacated. (See also Benz v. Hines, 3 Kas. 390; Watson v. Jackson, 24 id. 442; Tucker v. Green, 27 id. 355; Schulenberg v. Farwell, 84 Ill. 400; Alexander v. Brown, 2 Disn. 395.) What is said in Comm’rs of Wilson Co. v. McIntosh, 30 Kas. 234, does not conflict with anything said in the opinion. There had been a motion in another action to retax costs, made after the judgment, concerning a question upon which the parties were not entitled to a jury, as the decision in such cases is given by the statute expressly to the court. In that opinion it is stated that the doctrine of res adjudicata does not apply to interlocutory motions so far as determining the same subject-matter again in the more regular form of au action in law or equity. We recommend that the judgment be reversed. By the Court: It is so ordered. All the Justices concurring.