McGonigle v. Gordon , 11 Kan. 167 ( 1873 )

The opinion of the court was delivered by

Kingman, C. J.:

This was an action on an attachment bond given under §213 of the code. The plaintiffs in error were the sureties on the bond. A special werdict was demanded on all the issues of fact.under § 7 of the act of 1870. (Laws of 1870, p. 173.) The error alleged is, that the facts as found by the special verdict do not authorize the judgment rendered. The rule by which this question must be determined is found in § 285 of the code. The facts must be so presented as that nothing remains to the court but to draw from them conclusions of law. But the facts to be presented by a special verdict are only the facts that are necessary to be offered in evidence. What is admitted in the pleadings, need not be proved, and need not be returned in a special verdict. The pleadings put certain questions in issue; on these only the jury pass. If a fact admitted in the pleadings is necessarily involved in a general verdict, the jury are instructed to consider that fact as true. The first defect alleged is, that the verdict fails to show that the property attached was restored to the owners. The action was on an undertaking given by plaintiffs in error as sureties to procure the release of an attachment. The law provides that upon giving the bond the attachment shall be discharged, and restitution made of the property attached. (Code, § 213.) The fact is found that upon the giving of the bond the same was approved by the court, and the property was released from the attachment. Was it a necessary fact to establish the liability of the sureties on the undertaking, that it should not only appear that the property was released from attachment, but that it should be restored to the owner? We think it was. The law makes a distinction between a release of the property from attachment, and the return thereof to the owner. As we find this distinction made by the statute we cannot ignore it. And it is not difficult to perceive a great difference between the two acts. When the proper bond is given the law discharges the attachment. The bond becomes the surety of the attaching-creditor in lieu of the attached property. But the debtor has n right to a restitution of the attached property. If he does not get possession of the property taken „ from him by the attachment, he ought not to be compelled to pay the bond, the sole object for the giving it, being the restitution of his property. It is the duty of the officer holding the attached property to make the restitution; but if the plaintiff relies on the bond he must see that the officer does this duty. This is the reason of the law. The law itself is plain enough. It positively directs that restitution shall be made. It is not the policy of the law to drive the defendant, after having given security for the demand against him, to another action against the officer to obtain possession of his own property. It is urged in argument that the eighth fact found is in substance a general verdict, and therefore the judgment should be sustained on that finding. But we do not think that the finding is in form or substance a general verdict, and therefore it is unnecessary to decide whether, when a special verdict is demanded and rendered, and is found defective, a judgment will be upheld on a general verdict. Our statute makes a great innovation on the common law, and whether it is wise or otherwise, the courts cannot change it. This conclusion necessarily reverses the judgment of the district court; a result which, on account of the consequences of the decision, has not been reached without the most careful scrutiny and mature deliberation. There are no exceptions to the verdict; no motion for further findings, or for a new trial. All the facts in the case are found to the satisfaction of both parties. The facts do not warrant a judgment for the plaintiff below. Therefore the judgment ■ must be for the defendant on the verdict. It seems to us that justice requires the case to be sent back for a new trial, and if the court had the power to do so, it would make such an order, but we have no discretion in the matter. Section 559 of the code is explicit and positive on this point. The case must be sent back to the district court with instructions to enter judgment on the verdict for the defendants. If there is any hardship in the case, the remedy for future cases lies with the legislature, not with the court.

All the Justices, concurring.