Fisher v. Haxtun ( 1881 )

The opinion of the court was deliyered by

Horton, C. J.:

On September 4, 1877, Haxtun and Ogden commenced their action in Dickinson county district court, against E. W. Sizer, M. Dively and William Dively, to recover 4,500 bushels of red winter wheat. On the same day, the Divelys gave a redelivery bond with-Fisher and Henry, plaintiffs in error, as sureties, and retained the possession of the wheat. On September 6, 1877, Haxtun and Ogden commenced also another action in the Dickinson county district court against E. W. Sizer for $2,724.34, money had and received by the defendant to and for the use of the plaintiffs, and caused an order of attachment to issue therein. The order was levied by the sheriff upon the wheat, which was appraised at $2,675.40. An undertaking w^s entered into with the sheriff, signed by M. Dively & Co., T. C. Henry and J. M. Fisher, under § 199 of the code. Upon the execution of this undertaking, the attached property was returned to M. Dively & Co. On September 25, 1877, Haxtun and Ogden dismissed their replevin action, and on March 25, 1878, the court proceeded to inquire into the right of the property, and right of possession of the defendants to the property taken, and a judgment was entered that the defendants M. Dively & Co. recover from the plaintiffs the sum of $75, together with their costs. On March 30, 1878, in the action of Haxtun and Ogden against Sizer, plaintiffs recovered $2,827.64, and their costs taxed at $104.25. On July 7,1880, Haxtun and Ogden commenced this action in the Dickinson county district court to recover upon the forthcoming bond executed September 6, 1877, by M. Dively & Co., T. C. Henry and J. M. Fisher, in the action then pending of Haxtun and Ogden v. E. W. Sizer, and in their petition demanded judgment for the sum of $2,675.40, with interest from March 30,1878, at seven per cent, per annum. On October 2, 1880, the defendants filed their answer setting up at length the facts of the replevin suit as a defense. Haxtun and Ogden demurred thereto. After argument of the demurrer, and before its decision, Haxtun and Ogden dismissed their action as to M. Dively and William Dively, without prejudice to a new action. The court thereupon sustained the demurrer, and J. M. Fisher and T. C. Henry electing to stand by such answer, the court entered judgment against them for $3,147.73, and also all costs. Fisher and Henry excepted, and bring the case here.

The objection made to the petition is fatal to the judgment in this: That while it is fully alleged that Haxtun and Ogden recovered a judgment against Sizer, and that the defendants failed to return the wheat described in the forthcoming bond, it nowhere states that the court made any order to sell the attached property. Until such order was made, the parties executing the bond were not required to deliver the attached property to the sheriff, nor to any other party. Sec. 222 of the code reads:

“If judgment (in proceedings upon attachment) be rendered for the plaintiff) it shall be satisfied as follows: So much of the property remaining in the hands of the officer, after applying the moneys arising from the sale of perishable property, and so much of the personal property and lands and tenements, if any, whether held by legal or equitable title, as may be necessary to satisfy the judgment, shall be sold by order of the court, under the same restrictions and regulations as if the same had been levied on by execution; and the money arising therefrom, with the amount which may be recovered from the garnishee, shall be applied to satisfy the judgment and costs. If there be not enough to satisfy the same, the judgment shall stand, and execution may issue thereon for the residue, in all respects as in other cases. Any surplus of the attached property, or its proceeds, shall be returned to the defendant.”

Sec. 223 provides:

“The court may compel the delivery to the sheriff for sale, of any of the attached property for which an undertaking may have been given, and may proceed summarily on such undertaking to enforce the delivery of the property, or the payment of such sum as may be due upon the undertaking, by rules and attachments, as in cases of contempt.”

In Tyler v. Safford, 24 Kas. 580, we held that the execution of a forthcoming bond does not operate as a release of the attachment lien; that the object of the bond is to insure the safe-keeping and faithful return of the property to the officer, if its return shall be required. Now such a return is not required, unless the oourt shall order the property, or a part thereof, to be sold to satisfy the judgment.

In the absence of any allegation in a petition upon a forthcoming bond of any order for the sale or return of the attached property, no recovery can be.had. The demurrer to the answer, therefore, on the ground that the latter did not state facts sufficient to constitute a defense to the plaintiffs cause of action, ought to have been carried back and sustained as against the petition, owing to the fatal omissions therein. Counsel of defendants suggest that the objection to the sufficiency of the petition is raised for the first time in this court. The record does not disclose this fact; but conceding it to be true, plaintiffs in error are not prevented thereby from calling our attention to the fatal omissions in the petition. We have often held that any error apparent in the final judgment of a district court may be corrected by a suit in error in this court, even though no exception was taken thereto by the party complaining. In this case, the allegations in the petition are not sufficient to support the judgment; the judgment was rendered against the objections of the defendants, (plaintiffs in error,) and they excepted thereto.

The judgment of the district court must be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.

All the Justices concurring.