Wells, Fargo & Co. v. Danford , 28 Kan. 487 ( 1882 )

The opinion of the court was delivered by

Horton, C. J.:

The affidavit filed in this case to obtain an order of attachment against the property of defendants, Danford and Smith, was defective, as it failed to set forth the nature of the plaintiffs’ claim. The question therefore occurs, whether the district judge should have granted the plaintiffs’ request for leave to amend the affidavit. This court long ago decided that an affidavit for an order of attachment may generally be amended. (Burton v. Robinson, 5 Kas. 287.) Counsel for defendants contend, however, that a judge at chambers . has not this power. It is true that this court, in the case of Burton v. Robinson, supra, referred to § 1, ch. 55, Laws of 1865, as authority to amend affidavits filed to obtain attachments. This section was an amendment to § 147 of^he code of 1'859, and is identical with § 139 of our present code; but § 147 of the code of 1859, prior to the amendment of 1865, was sufficiently broad in its terms to authorize defective affidavits in attachments to be amended upon the order of the court. The code of 1859 did not confer upon a judge of the district court the power to dissolve an attachment in vacation. The power under that code was limited to the court. (Reyburn v. Bassett, McCahon, 86.) Subsequently, the legislature conferred this power on the judge in vacation. (Comp. Laws 1862, ch. 68, § 3; Comp. Laws 1879, ch. 28, § 2.) Under this subsequent, legislation, a judge of the district court has power at chambers to discharge an attachment, and to grant . . . all necessary interlocutory orders, (Shedd v. McConnell, 18 Kas. 594.) Conferring this power upon a district judge at chambers also carried with it the power previously conferred on the district court for the like purpose. The statute giving the judge in vacation or at chambers the authority to discharge attachments, and to grant all necessary-interlocutory orders, necessarily carries with-it the right to hear and dispose of all intermediate questions arising upon such a motion. Thus a judge at -chambers has the right to hear and determine upon a motion to dissolve or discharge an attachment, and the question of the continuance of the,hearing, and likewise of an application for amendments. The proper order to be made before the judge upon a motion to discharge an attachment on the ground of a defective affidavit, is that the attachment shall be dissolved unless the plaintiff within a designated time file a sufficient .amended affidavit. As the district judge hearing the case at chambers had the right to permit the defective affidavit to be amended, and as the allowance of the amendment asked to be made by plaintiffs was in the furtherance of justice, such application should have been granted. (Gaylord v. Stebbins, 4 Kas. 42; Robinson v. Burton, 5 Kas. 293; Ferguson v. Smith, 10 Kas. 396; Brown v. Holmes, 19 Kas. 567.)

The order of the district judge dissolving and setting aside the order of attachment'on the motion of the defendants must be reversed, and'the cause remanded for further proceedings.

All the Justices concurring.