Mrs. E. Adams, et al., v. Lockwood, Englehart & Co.

Kansas Supreme Court1883-07

30 Kan. 373

Summary · law.co

Holding. The court affirmed the district court's rulings overruling both motions to discharge the attachment, finding no legal error in the attachment proceedings and holding that the time interval between the affidavit's execution and issuance of the attachment was not grounds for discharge where the alleged fraudulent conduct constituted continuing facts.

This case involved an action on promissory notes with accompanying attachment proceedings. The defendants filed two motions to discharge the attachment—first on one set of grounds, and then a second motion on different grounds without obtaining leave of the court. The district court overruled both motions. On appeal, the defendants challenged these rulings, arguing various grounds for discharge.

The court held that the second motion should not have been entertained because it was filed without permission and raised no new facts or circumstances that had arisen since the first motion was denied. The court explained that parties cannot file successive motions seeking the same relief based merely on different legal theories; all arguments must be included in the initial motion, and subsequent motions are permissible only with court approval and only when justice clearly demands it.

Regarding the merits, the court examined all grounds raised in both motions and found them insufficient to warrant reversing the district court. The one issue warranting discussion was the 18-day gap between the date the affidavit was sworn (October 31) and when the attachment was issued (November 18). The court determined this delay was not fatal because the specific allegations—fraudulent contraction of the debt and fraudulent disposition of property—were continuing facts that remained true throughout the period and were not subject to change like a defendant's residence status might be.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a second motion to discharge an attachment may be filed without court permission
Whether successive motions based on different grounds are permissible
Whether a delay between affidavit execution and attachment issuance requires discharge when the alleged facts are continuing in nature

Procedural posture

The defendants appealed from the district court's overruling of their first and second motions to discharge an attachment issued in an action on three notes.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered by

Brewer, J.:

This was an action on three notes, in connection with which were certain attachment proceedings. So far as any question is presented as to the petition, the ruling of the district court will be affirmed, on the authority of Ambrose v. Parrott, 28 Kas. 693. A motion was made to discharge the attachment, which was overruled. After it had been overruled, defendants filed a second motion to discharge the attachment upon different grounds. This motion was filed .apparently without any leave of the court. Upon a hearing it was also overruled, and of these rulings defendants now complain. As this second motion was filed without leave of the court, it might properly have been disregarded. None of the grounds stated in it could by any pretense be called new matter; that is, facts arising since the decision of the first motion. A party has no right to trouble the court or annoy the opposite party by successive motions seeking the same relief, even though he bases them upon different grounds. He must include everything in the first motion, and can only file a second motion upon leave of the court, which will be rarely granted, and then only where justice seems manifestly to require it. (Freeman on Judgments, §§ 325, 326.) So that if the court had disregarded the second motion, there would be no error.

However, we see nothing in any of the six grounds stated in the two motions, which calls for a reversal of the rulings of the district court. The only matter we think of sufficient importance to require notice, which is not already covered by prior rulings of this court, (see especially Ferguson v. Smith, 10 Kas. 396,) is the timé intervening between the making of the affidavit and the commencement of the action. The affidavit was made October 31, and the petition and affidavit were filed and summons issued on November 18, following. The affidavit charged, among other things, that the defendants had assigned, disposed of and removed their property, or a part thereof, with intent to defraud, hinder and delay their creditors, and also that they fraudulently contracted the debt. Now it is doubtless true, as counsel for plaintiff in error claim, that the ground for attachment must be true at the time the attachment is issued, and that the affidavit must relate to such time, (Robinson v. Burton, 5 Kas. 303, and cases cited in the opinion.) But it will be noticed that the grounds for attachment charged in this case were matters which once occurring continue unchanged. If on the 31st October it was true that defendants had fraudulently contracted the debt, it continued to be the truth up to the 18th of November, and was not a matter subject to change. Of course if the charge was non-residence, that fact might be changed during the eighteen days; but the facts alleged in this affidavit once •existing continue to exist. Now under those circumstances, although an affidavit for attachment should be made as near the time it is filed as practicable, we do not think the lapse of intervening time in this case is such as necessarily to compel the discharge of the attachment. In Drake on Attachments, 3d ed., §111, the author says: “It is proper that an affidavit should be made as near as practicable at the time of the institution of the suit; but it is believed to be a general practice to allow attachments to issue on affidavits made some time before the issue of the writ.” (See also Creagh v. Delane, 1 Nott & McCord, 182; Wright v. Ragland, 18 Tex. 289; Graham v. Bradbury, 7 Mo. 281; O’Neil v. Mining Co., 3 Nev. 142.)

We see nothing else requiring comment, and the judgment will be affirmed.

All the Justices concurring.