Gates v. Sanders , 13 Kan. 411 ( 1874 )

The opinion of the court was delivered by

Brewer, J.:

1. Appeals from justice. Order of attachment. Plaintiffs in error commenced an action against defendant in error before a justice of the peace, and at the same time sued out an order of attachment. Thereafter, upon motion of the defendant and hearing, as provided for in § 53 of the justices act, 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 ordiJ ° , . J . . . . 1 nary appeal bond, reciting the judgment, etc., but making no mention of or reference to the attachment or its discharge. On the trial in the district court they obtained a judgment, as before the justice, for the amount of their claim, and then asked for an order of sale of the attached property. This was refused. They then asked leave to amend the appeal bond, so as to show that they appealed from the order discharging "the attachment. This also was refused, and they were taxed with the costs of the appeal. Upon these facts' two questions arise: First, Did the appeal from the judgment bring up for review, or retrial, the proceedings in attachment? Second, If not, ought the district court to have allowed an amendment of the appeal bond? Both of these we think must be answered in the negative. The attachment is but an ancillary proceeding, and may stand or fail 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. Boston v. Wright, 3 Kas., 230. It was of the judgment the plaintiffs complained in their appeal bond, and that only which they sought to change. If they sought a review of the attachment proceedings, something more than an appeal from the 'judgment on the merits of the case was necessary.

2. Amendments, Appeal bond. While the district court has ample power to permit an amendment of the appeal bpnd, when insufficient in form or amount, (Justices Act, §131,) yet an amendment .g no^ a mafter 0f right, upon which in all cases of insufficiency a party may insist. The court must exercise a sound discretion in deciding whether, under the circumstances of the particular case, the party should be allowed to amend. In this case we cannot from anything before us see that the court improperly refused the application for leave to amend. The attachment had been discharged by the justice. For aught that appears the property attached had been returned to the defendant, and by him wholly disposed of. No notice had been given of an intention to retry the question of the attachment. It might be that if the attachment was brought up for retrial, and sustained, an unpleasant question would arise as to the responsibility of the constable for not having the goods in his possession. It is useless, however, to speculate. It is enough that the record fails to show that the court abused its discretion. The costs of the appeal were properly taxed to the appellant. (Justices Act, §128.)

The judgment will be affirmed.

It is understood that the same questions arise in the case of Eames, Crampton & Eberle against this defendant in error, and the same judgment will be entered in that case.

All the Justices concurring.