Quinlan, Montgomery & Co. v. Danford , 28 Kan. 507 ( 1882 )

The opinion of the court was delivered by

Horton, C. J.:

In this case the petition does not state facts sufficient to constitute any cause of action against the defendant Danford. The Merchants’ and Drovers’ bank is the defendant which is primarily liable, and the first step is a judgment against the bank. Whatever proceedings may be proper after the judgment to enforce its collection, it is clear under the allegations of the petition that Danford is not primarily liable. The statute requires that the affidavit for attachment must contain a statement showing the nature of the plaintiff’s claim. This claim referred to in the affidavit must have reference to the cause of action set forth in the petition. In other words, the debt sued on in the petition must be the one sworn to in the affidavit. If the petition does not state a cause of action against the defendant, the plaintiff is not entitled to have his attachment. An attachment is obtained for the eventual satisfaction of the demand of the creditor, and if the creditor has no demand to satisfy, he is not entitled to an attachment. If he has a demand or cause of action, the petition must contain a statement of the facts constituting such cause of action. Where a person obtains an attachment to be issued against the property of another, and his petition on file does not allege a cause of action against the defendant, and such petition is not amended, no error is committed in dissolving the attachment. Sec. 228 of the code authorizes the defendant at any time before judgment, upon reasonable notice to the plaintiff, to move the discharge of an attachment as to the whole or part of the property attached. Under this section the defendant may make h.is application for a discharge or a dissolution of the attachment as soon as reasonable notice thereof can be given to the plaintiff. He need not wait until he files an answer, nor is he debarred from making such application because he has not filed an answer or demurrer to the petition. The objection taken to the affidavit for attachment for failing to set forth the nature of the plaintiffs’ claim was properly sustained by the district judge. The language contained therein is too indefinite and loose to show the nature of the alleged indebtedness, or to inform the defendant of the nature of the plaintiffs’ claim. It does allege that the defendants are indebted to the plaintiffs in the sum of $2,895.62 for and on account of- a sight draft drawn by the Merchants’ and Drovers’ bank, defendant, in favor of plaintiffs; but in what way Danford is connected with such draft, -is wholly omitted. The district judge had the right at chambers to permit the affidavit for attachment and the petition to be amended. (Wells, Fargo & Co. v. Danford, ante, p. 487;) But from the record before us, we cannot declare that any material error was committed by the refusal of the district judge to allow the amendments. There is no showing made in the record as to the character of the amendments requested, and therefore we cannot say whether the amendments would have been sufficient to cure the defects in the petition and affidavit. Without leave of the judgé, the plaintiffs had the right to-amend their petition, as no answer had been filed. If they had made the amendment and then the judge had ignored or refused to consider the petition as amended, the error would be material. If the record contained the proposed amendment to the affidavit, and it appeared from such amendment that the affidavit would be sufficient, the refusal of the judge to allow the amendment would also be material error. In the ease of Wells, Fargo & Co. v. Danford, supra, it appeared from the record that the plaintiffs applied for leave to amend the defective affidavit so as to make it show the nature of the plaintiffs’ claim against the defendants. Nothing appears of this kind in the record before us. Error is not to be presumed, but must be affirmatively shown, and we cannot say from this record that any material or substantial error was committed. Therefore the order of the district judge must be affirmed.*

All the Justices concurring.