Burton v. Robinson

Supreme Court of Kansas

Burton v. Robinson

5 Kan. 287

CourtSupreme Court of Kansas

DecidedJanuary 15, 1870

StatusPublished

Cited by8 cases

This text of 5 Kan. 287 (Burton v. Robinson) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burton v. Robinson, 5 Kan. 287 (kan 1870).

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Opinion

By the Court,

Valentine, J.

In this case' an order of attachment was issued and levied upon the property of Burton, who was defendant in the court below; Burton moved the court to dissolve the attachment, on the grounds that the original affidavit, upon which the order was issued, was defective and insufficient to sustain the attachment. The court sustained the grounds of his motion, but not the motion itself. The court decided that the affidavit was defective; gave the plaintiff leave to amend the affidavit within ten days after the adjournment of the court, and did not dissolve the attachment.

The defendant complains of the rulings of the court, and brings the case to this court for review.

Ve shall assume that the affidavit was defective, and upon this assumption, or hypothesis, did the court err.

Attachment : Amending affidavit for. That an affidavit for an order of attachment generally be amended, there can be no doubt; [§ 1, Laws of 1865, 131; Drake on At[293]*293tachment, § 113; 13 Sow. Pr. R., 350, 359; 7 Barb., 656, 660; 13 Iowa, 576,] and the' only question then, in this case, is whether this particular affidavit may be amended. Perhaps it will be proper to here state, that no question was anywhere raised by demurrer, answer, affidavit, or otherwise, “ that several causes of action were improperly joined.” Hence if a portion of the plaintiff’s causes of action were founded upon tort, and a portion of them founded upon contract, still as the defendant raised no objection, it must be deemed that he waived the same. § 98, Comp. L., 140.

¥e think it was proper to allow the plaintiff to amend her affidavit in this case. She did not ask to amend by stating a new cause of action, or by stating a new ground for the attachment, or anything of that kind. All she asked was for leave to state more definitely, and formally, what she had already stated indefinitely, and informally. The court properly granted such leave and, therefore, the order of the court below must be affirmed.

All the justices concurring.

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By the Court,

Valentine, J.

In this case' an order of attachment was issued and levied upon the property of Burton, who was defendant in the court below; Burton moved the court to dissolve the attachment, on the grounds that the original affidavit, upon which the order was issued, was defective and insufficient to sustain the attachment. The court sustained the grounds of his motion, but not the motion itself. The court decided that the affidavit was defective; gave the plaintiff leave to amend the affidavit within ten days after the adjournment of the court, and did not dissolve the attachment.

The defendant complains of the rulings of the court, and brings the case to this court for review.

Ve shall assume that the affidavit was defective, and upon this assumption, or hypothesis, did the court err.

Attachment : Amending affidavit for. That an affidavit for an order of attachment generally be amended, there can be no doubt; [§ 1, Laws of 1865, 131; Drake on At[293]*293tachment, § 113; 13 Sow. Pr. R., 350, 359; 7 Barb., 656, 660; 13 Iowa, 576,] and the' only question then, in this case, is whether this particular affidavit may be amended. Perhaps it will be proper to here state, that no question was anywhere raised by demurrer, answer, affidavit, or otherwise, “ that several causes of action were improperly joined.” Hence if a portion of the plaintiff’s causes of action were founded upon tort, and a portion of them founded upon contract, still as the defendant raised no objection, it must be deemed that he waived the same. § 98, Comp. L., 140.

¥e think it was proper to allow the plaintiff to amend her affidavit in this case. She did not ask to amend by stating a new cause of action, or by stating a new ground for the attachment, or anything of that kind. All she asked was for leave to state more definitely, and formally, what she had already stated indefinitely, and informally. The court properly granted such leave and, therefore, the order of the court below must be affirmed.

All the justices concurring.

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Bluebook (online)

5 Kan. 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burton-v-robinson-kan-1870.

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