Shedd v. McConnell , 18 Kan. 594 ( 1877 )

The opinion of the court was delivered by reverse an order of the judge of the district court, made at chambers, discharging an attachment. It appears from the

Valentine, J.:

statementof the case. The object of this petition in error is to record that on the 1st of December 1875, J. S. Shedd commenced this action in the district court against Robert L. McConnell and Mary A. McConnell on a certain promissory note and mortgage, and at the same time procured an order of attachment to be issued by the clerk of said court, which order of attachment was on the 2d of December levied on certain goods and chattels belonging to the defendants. Afterward the defendants made a motion before said judge at chambers “to discharge and set aside the order of attachment issued in this cause on the 1st of December 1875, for and on account of defects appearing upon the face of the papers, and on the further ground that it appears from the affidavit upon which said attachment was issued that the cause of action is in the nature of an equitable action, and that it is for the foreclosure of a mortgage upon real property, and the said debt is fully secured by the said mortgaged property, and that each and every of the grounds for an attachment stated in said affidavit, upon which the said attachment issued, are false.” On the hearing of this motion a small amount of oral testimony was introduced, and a vast number of affidavits were read. At the conclusion of the hearing the judge ordered, “that the said attachment be and the same is hereby discharged as to all the property so levied on.” The plaintiff excepted to this ruling, and assigns error thereon.

Denial of facts alleged; certaiutyrequired. Hearing of motion. It will be noticed that the defendants moved to discharge the order of attachment on three grounds: 1st, for defects appearing on the face of the papers; 2d, the debt was fully secured by the mortgage; 3d, the grounds stated in the plaintiff’s affidavit for the attachment were all false. The second ground was really the only one relied on by the defendants on the hearing below, as would seem from the evidence introduced. And it was evidently upon that ground alone that the judge discharged the attachment. At, the close of the hearing there were certainly no defects appearing on the face of the plaintiff’s papers which would authorize the discharge of the attachment. Even if it devolved upon the plaintiff to show, in his original affidavit, that the mortgage was not a sufficient security for his debt, still he showed that fact so abundantly by his subsequent affidavits that the defect (if it was a defect) must be deemed to have been cured; and no other defect appearing on the face of the papers has been suggested. The defendants filed an affidavit made by themselves, possibly for the purpose of putting in issue the grounds stated in the plaintiff’s original affidavit; but . , 1 _ , 7 it certainly does not put in issue all of such grounds. For instance, the plaintiff’s original affidavit stated among other things that on the 1st of December 1875, (the time when said order of attachment was issued, and one day before the defendants’ property was seized,) “ the said defendants have property and rights in action which they conceal.” The defendants’ affidavit states that on December 11th 1875, “they [the defendants] have no property and rights in action which they conceal;” and the affidavit does not state that on December 1st the defendants did not have any property or rights in action which they were then concealing. Both affidavits were probably true in this respect. They do not contradict each other. At least, we should think from the evidence that the plaintiff’s affidavit was true. And if it was true when made, and when the order of attachment was issued, the defendants cannot have the attachment discharged merely because some ten or eleven days thereafter, and after their property had been attached, they had ceased to “have property and rights in action which they conceal.” On the hearing of the motion the plaintiff introduced evidence to prove that the grounds of his affidavit were true, and the defendants did not introduce any evidence to the contrary. Hence the judge could not have found that all the grounds stated in the plaintiff’s affidavit were false. As before stated, we think the judge must have discharged the attachment solely upon the ground that the. plaintiff’s debt was amply secured by the mortgage. It would seem from the evidence introduced, that this was the only question which the defendants desired to submit to the judge. Whether the judge decided correctly or not upon this question, we shall consider hereafter.

powers of aistrict judge at chambers, The plaintiff claims that the judge had no right to consider any of the questions raised by the motion to discharge the attachment. He claims that a iudge of the dis- . 1 ,, , trict has no power or authority m any case to discharge an attachment at chambers; and (after defining that the word “attachment” means, the seizure and holding of property by virtue of an order of attachment,) he then claims that, even if it should be admitted that a judge of the district court could discharge an attachment at chambers, still that he has no power or authority to discharge an order of attachment at chambers. And he further claims, that as the motion in this case was to discharge the order of attachment, arid not to discharge the attachment itself, therefore the judge has no right to hear the motion, or to discharge the attachment upon such motion. 'With reference to the first claim of the plaintiff, we would say that we think that a judge of the district court has power at chambers to discharge an attachment; and without making any argument in answer to the plaintiff’s argument, we would simply refer to the statutes and authorities from which such argument may be made. (Laws of 1861, p. 121, §3; Comp. Laws of 1862, p. 454, § 3; Gen. Stat. of 1868, p. 304, §2; Bowman v. Cockrill, 6 Kas. 334, 335; Division of Howard Co., 15 Kas. 195, 214, 215; Kiser v. Sawyer, 4 Kas. 503, 511, which holds that, “the court, the greater, includes the judge, the less.” This is true of the business of the court; it includes the business done-before the judge.

phraseoiogy of motion. With reference to the second claim of the plaintiff, we would say, that, as the judge did nothing more than to discharge the attachment, (taking the plaintiff’s own definition of the word “attachment,”) the question is simply, whether the motion was sufficient. The motion was to discharge the order of attachment. Now would not a discharge of the order of attachment be also a discharge of the property held under the order of attachment? Whether the motion was technically correct or not, as a motion to discharge the attachment, we do not choose to decide. But we think that no material error was committed by the court in considering it sufficient. The proceedings show that the plaintiff had full notice that the defendants desired upon said motion that their property should be discharged from the attachment, and also had full notice upon what grounds the defendants so desired such discharge; and the property was discharged on one of these grounds. •

ineompetent effect of. ’ On the hearing of the motion to discharge the attachment^ the defendants offered to introduce the following testimony of the witness John E. Evans, to-wit: “I know the persons comprising the firm of Prescott & Prescott, and had a conversation with them in Topeka, in May 1875, in their office, in which they said they had made defendant, E. L. McConnell, a loan of $1,000 on his place in Lyon county, and that they thought the place was a good place, and that McConnell was a fine man, and that the loan was well secured.” Neither the firm of Prescott & Prescott, nor any member thereof, was a party to this suit; nor was it shown that either of them was ever authorized by the plaintiff, or by any person under whom the plaintiff claimed, to make any such statement; nor was it shown that the conversation was connected with the transaction of any business for the plaintiff, or for any person under whom the plaintiff claimed; nor was it shown that the attention of either member of said firm of Prescott & Prescott was ever called to said conversation, so as to give either of them an opportunity to explain the same. The judge permitted said testimony to be introduced over proper objections and exceptions .made by the plaintiff. In this we think the judge erred. But as nearly all the evidence introduced on the hearing of the motion is embodied in affidavits, and as we have all the evidence introduced on such hearing before us, this error will not require a reversal of the decision below, provided a preponderance of the other evidence is found to support such a decision.

Preponderance of testimony; burden of This then brings us to the last question in the case: Does the preponderance of the evidence sustain the decision be-1()W ? 0r> for tIie PurP°SeS of this Case, We shall state the question thus: Is such decision sustained by at least an equilibrium of the evidence? Eor it may be, that the burden of proof rested upon the plaintiff on the hearing of said motion, and that unless the plaintiff furnished a preponderance of the evidence the decision of the judge below must be sustained.. The question whether the decision of the judge below is sustained by sufficient evidence, depends entirely upon this other question, whether said mortgage was shown to be a sufficient security for the plaintiff’s debt, or not. The mortgaged property consisted of the N.E.-J of sec. 1, township 17, range 12, in Lyon county, except two acres thereof which had been previously conveyed to other parties by the defendants. Said property is broken, hilly, upland prairie, cut up with ravines, and has no improvements thereon except an old, dilapidated, wooden dwelling-house, with out-buildings to correspond, and a well, and about six acres fenced and broke. It is worth about $1,228. But no witness testified that it would sell at forced sale for that price. One witness testified that it would not sell at forced sale for $800; and no witness testified that it would sell at forced sale for more than that sum. The sheriff of the county, who perhaps testified as intelligently upon, that subject as any other witness in the case, testified that said mortgaged property would not sell for cash at sheriff’s sale for $480. Two other witnesses testified to substantially the same thing. The defendant himself did not believe that the land was worth the amount of the mortgage-debt. He was anxious that the plaintiff should take the land for the debt, and said a short time before this suit was commenced,- “that if the mortgage was foreclosed, and said real estate sold at sheriff’s sale, it would not bring enough to satisfy and pay off said claim and the costs of the proceedings.” Soon after he mortgaged the said property he was in the county treasurer’s office, and told the treasurer that he would not pay the taxes on said land for the reason that he had sold the same. A person standing by said to the defendant, that he thought that he (the defendant) had recently mortgaged the premises. And the defendant answered saying, “that said premises were devilish well sold, and that they [the mortgagees] could take them;” “that he had got one thousand dollars on ,the said premises, and that they were devilish well sold, and that they [the mortgagees] might keep them.” And the defendant did not pay the taxes on said premises, although he had agreed in the mortgage that he would do so. And the defendant also failed to make certain improvements on the land which he agreed in the mortgage to make. One of the defendant’s own witnesses testifies that it is not customary for loan agents to “loan more money on land than one-third of the actual value thereof, in Lyon county.” This tends to show that the value put upon land in Lyon county is vastly above its selling-price, and vastly above what it would be a good security for. The statutes provide that real estate sold on execution (except where appraisement is waived) must sell for at least two-thirds of its appraised val m. Generally it will not sell to third persons for that amount, and the judgment-creditor has to purchase it himself at that price in order to bring about a sale at all. Now while the evidence in this case does not show that the mortgaged property would sell at sheriff’s sale for two-thirds of what its value would appear to be, but on the contrary shows that it would not sell for that much, yet under the statutes we think we should presume that it would sell for that much. Now as the property .is worth about $1,228, it should sell at sheriff’s sale for $818.67. And this is all for which it can reasonably be considered as a good security. On the other hand, the mortgage is for $1,000. There is now over $175 of interest actually due on the note and mortgage; (the coupons show $180;) the defendants agreed in the mortgage to pay a reasonable attorney-fee for foreclosure, and the evidence shows that a reasonable attorney-fee would be $150. The evidence also shows that the defendants failed to pay the taxes for the years 1874 and 1875, and we suppose have failed to pay all taxes on the premises up to this time. The evidence also shows that the plaintiff has paid $50 of taxes on the premises. The costs will probably be $50 or $60, and may be vastly more. All these items must be considered in rendering the judgment, and they will all be liens upon the mortgaged property. Whether any of the items can be reduced below the figures we have given, when the judgment shall be rendered, is not certain. It is possible that the attorney-fee may, though that is not certain. It is certain however that the interest will be more than we have stated, and it is probable that the taxes and costs will also be more. Now these items in the aggregate amount to $1,425. And it will therefore be seen that the mortgaged property is not a sufficient security for the judgment which will probably be rendered. But we will suppose that the judge below anticipated that the judgment would be rendered at as early a day as possible, and with as little trouble and expense as possible, notwithstanding the extraordinary contest that was had over this motion, and notwithstanding that the evidence of about seventy witnesses was used on the hearing of this motion. In such a case the amount of the judgment would of course be reduced below the amount at which we have placed it. But still we do not think that the amount could be reduced so low as to make the mortgaged property a sufficient security for the judgment. In fact, we do not think that the mortgaged property would be a sufficient security for the mere naked principal of the debt alone, without interest, without taxes, without costs, and without attorney-fees. We do not believe from the evidence that the mortgaged property could be sold at sheriff sale for ,$800. Indeed, there is only one witness who shows by his evidence that he. resides near the property who says it is worth more than that sum, and he says it is worth only $900. The most of the witnesses who show by their testimony that they reside near the property, say that it is not worth $800, and one witness who has resided within two miles of the property for more than eighteen years, says that it is not worth more than $400.

It would seem from the foregoing facts, that but one conclusion can be reached. In Gillespie v. Lovell, 7 Kas. 419, 423, which was an action to foreclose a mechanic’s lien, and in which an order of attachment was issued and levied, we held that “under §190 of the civil code the plaintiff may have an attachment in every ‘ civil action for the recovery of money,”’ and that an action to foreclose a mechanic’s lien was a civil action. In such action, and also in an action to foreclose a real-estate mortgage, where the plaintiff recovers, á personal judgment is rendered against the debtor, where such debtor is made a party defendant, as in this case. In the case cited, the defendant did not attempt to show that the property bound by the mechanic’s lien was a sufficient security for the plaintiff’s claim, but he did object to the plaintiff’s showing that such lien was not a sufficient security. We held that “if it had been shown that the lien itself was a sufficient security for the plaintiff’s claim, it would have been the duty of the court below, or judge, to dissolve the attachment.” The logical deduction from this decision is, that in an action for money in which a personal judgment may be rendered against the defendant, the plaintiff may, if sufficient cause exists, have an attachment against the property of the defendant, notwithstanding the fact that in the same action the plaintiff seeks to foreclose a lien on specific property held as security for the debt due, provided such lien is insufficient security for the plaintiff’s claim; and that where in such an action an order of attachment is duly sued out and levied, and it is shown that the mortgaged property is not sufficient security for the plaintiff’s claim, it is error for the district judge or district court to set aside or dissolve the attachment proceedings merely because of the existence of such specific lien. And therefore, in the present case, the order of the district judge discharging the attachment will be reversed.

All the Justices concurring.