Standard Implement Co. v. Lansing Wagon Works , 58 Kan. 125 ( 1897 )

Allen, J.

I. The question for our consideration in this case is the scope of the inquiry into the validity of the plaintiff’s cause of action, in a controversy with other attaching creditors who, by interpleas, question the validity of the prior attachment. It was developed on the trial of this case that while the cause of action stated in the petition was one for goods sold and delivered, the debt was in fact evidenced by promissory notes, only one of which was due ; that an attachment for twenty-five hundred dollars had been obtained as upon a debt past due when in fact only eleven hundred dollars was due, and that on a promissory note not set up in the petition. It is insisted that, under the issues formed by the interpleas and the answers thereto, the interpleaders had the same right to litigate the plaintiff’s claim that the defendant in the action would have had ; and that they might make any attack on its right to prosecute the case by attachment and obtain a lien on his property that the debtor himself might have made ; that, in “this case, the plaintiff had no cause of action on an account for goods sold and delivered, and had no mature demand of any kind against the defendant, except the one on the note for eleven hundred dollars. On the other hand, the defendant in error contends that the case of the inter-pleaders was in the nature of a collateral attack ; and that they can question the plaintiff’s attachment only on the ground of fraud, or want of jurisdiction over the attached property. The authority for the proceedings under consideration is found in section 45a of the Code of Civil Procedure, which reads as follows: “Any person claiming property, money, effects or credits attached, may interplead in the cause, verifying the same by affidavit, made by himself, agent or attorney, and issues may be made upon such interpleader, and shall be tried as like issues between plaintiff and defendant, and without any unnecessary delay.” The question is raised by the defendant in error whether the interpleaders had such a claim to the property as is' contetaplated by this section of the Code. It is said that, at the time the plaintiff’s attachment was levied, the interpleaders neither had nor claimed any interest in, or lien upon, the attached property. It is argued that a subsequent attachment cannot confer such a claim upon the property as the law contemplates. We shall not attempt to decide this question, but shall assume that the practice followed is permissible, and shall consider' only the question as to the scope of the inquiry. It has been held that, under the provisions of section 532 of the Code, any person interested in property levied on under an order of attachment may move to discharge the attachment as to the property claimed. Long Brothers v. Murphy, 27 Kan. 375. And this right has been held to extend to subsequent attaching creditors. Dolan v. Topping, 51 Kan. 321; Bank of Santa Fe v. Haskell Co. Bank, 54 id. 375. In Dolan v. Topping, supra, it was held that the person who attempted to serve the attachment was not an officer, de jure or de facto, his appointment having been made by the clerk of the court without authority. In Bank of Santa Fe v. Haskell Co. Bank, it was held that the record failed to show valid grounds for an attachment. Ashton v. Clayton (27 Kan. 626) is mainly relied on by the plaintiffs in error. But in that case it is said that the claim of the plaintiff under which the prior attachment was levied, was, at the time the action was brought, a mere fiction; that the persons named as plaintiffs did not bring the action, nor authorize it to be brought; and that Ashton, while having a valid claim himself, could not obtain a lien by unauthorized use of the name of Burton, Moses & Brother in prosecuting a claim which had been in fact paid. A claimant occupying the position of the interpleaders in this case is usually called an intervenor. In Shinn on Attachments and Garnishments, Yol. 1, § 429, it is said :

“An intervenor cannot defend in the attachment suit in lieu of the defendant and defeat it for irregularities in the proceedings as against such defendant. . . . He cannot avail himself of such errors as would be simply sufficient for reversal in a direct proceeding, but must confine himself to such objections as he could make if attacking them in an independent collateral action.”

. mentis Collateral attack, when. In Dickinson v. Cowley (15 Kan. 269), construing a. statute, relating to attachments on processes. issued by justices of the peace, substantially similar to that under consideration in this case, it was held :

“ One who comes in under chapter 164 of the laws-of 1872, and claims property attached or levied on does not thereby concede the regularity of the proceedings, nor may he, like the defendant, avail himself of errors which are simply sufficient for reversal in direct proceedings therefor. He'claims adversely to the proceedings, and can only make such objections-as he could if attacking them in an independent collateral action.”

In 3 Encyclopedia of Pleading and Practice, 69, it is said :

“Creditors of the defendant who have, subsequent to the attachment, acquired liens upon the attached property, as by judgment or attachment, may mo veto dissolve the prior attachment; but not upon the ground of mere irregularities in the proceedings which have been waived by the defendant himself.”

Even on a-motion to discharge an attachment the-merits of the action are not in issue, unless necessarily involved in the statutory ground for the attachment set up in the plaintiff’s affidavit. Chouteau v. Boughton, 100 Mo. 406 ; Kohler v. Agassiz, 99 Cal. 9.

“A junior attaching creditor may intervene in a prior attachment suit and here contest his rights with the plaintiff in that suit, but he cannot be let in to defend the suit and dispute the grounds of the attachment, in lieu of the defendant, nor to defeat the attachment for mere errors or irregularities in the proceedings, but only for imperfections which are unamendable and render the procedings void.” Sannoner v. Jacobson & Co., 47 Ark. 31. See also Baker v. Ayres, 58 id. 524 ; Carter v. O’Bryan, 105 Ala. 305, 16 Southern Rep. 894; Bateman Brothers v. Ramsay, 74 Tex. 589.

The question whether the account was due arose on the merits of the case. The defendant himself, by his silence, admitted that it was due, and allowed judgment to be taken against him. There is no question whatever as to the justness of the debt, and it was competent for the parties to have made it due at any time. The question was not one which the inter-pleaders had a right to litigate. No fraud whatever is charged against the plaintiff. The justice of its demand is unquestioned. The judgment rendered against Van Vleet is conclusive as against the inter-pleaders, not only on all mere irregularities which might have been cured by amendment, but on all technical defenses which the defendant was at liberty to waive.

. „ , ,. 2. Attachment lien not lost, when, II. It is urged that by filing an amended petition on the eighth of February the-original cause of action was abandoned by the Wagon Company, and that its lien under its first attachment was thereby lost. In support of this contention, Heidel v. Benedict ( 31 L. R. A. 422), Fargo & Cutshaw (12 Ind. App. 392, 39 N. E. Rep. 532), and Bauer v. Deane (33 Neb. 487, 50 N. W. Rep. 431), are cited. We do not deem it necessary to make any extended comment on these cases. Under our Code, great liberality in making amendments is allowed. The nature of the plaintiff’s demand was- not changed by the amended petition, though the amount was largely increased. There-was no change of parties, as in Fargo v. Cutshaw, supra. It is said that in the amended petition a. claim not due is joined to one past due. The amended petition contains but one count, which, interpreted liberally, as it must be against a collateral attack, states one cause of action for $7,372, due and payable, for goods sold and delivered. While it. was-not stated in express terms that the claim was. due,, it was stated that the amount was owing, and that it had not been paid, though often reqested; and there was nothing indicating that the goods were sold on credit extending beyond the time of the filing of the petition. The amendment was certainly permissible ; and the fact that a second summons was issued and served does not conclusively prove that the plaintiff intended to abandon the suit first commenced. On the other hand, the record shows that the second petition was filed as an amended petition in the original action. In Cutler v. Lang ( 30 Fed. Rep. 173), it was held :

“An attachment is not dissolved by an amendment of the writ and declaration increasing the amount claimed, made after another attachment has intervened, where the first attaching creditor, upon obtaining judgment for the increased amount and taking out execution, directs the sheriff to levy only for the amount originally claimed.” To the same effect are Tilton v. Coffield (93 U. S. 163) and Henderson v. Stetter (31 Kan. 56).

The record brought to this court does not show what order was in fact made for the distribution of the fund brought into court on the sale of the attached property. No claim of priority appears to have been made by the Wagon Company, except under the first attachment for twenty-five hundred dollars, and it is to be presumed that that claim alone was passed on by the court. A question is made as to the plaintiff’s ownership of the notes sued on at the time of the commencement of- the action, but this, also, was involved in the merits of the case. Even if some of the notes had been negotiated, they were all in the possession of the plaintiff at the time of the trial; and most of them appear to have never been negotiated. We perceive no error in the record, and therefore affirm the judgment.

Poster, C. J., concurring.