Clay v. Hoysradt

8 Kan. 74

• Court: Supreme Court of Kansas
• Decided: January 15, 1871
• Status: Published

Opinion

The opinion of the court was delivered by .

Brewer, J.:

This is a proceeding in this court to reverse an order of the judge of the district court of Douglas county dissolving a temporary injunction. The facts so far as they bear upon the question which in our judgment determines the case, are these: A. M. Dunham was a justice of the peace in Sherman township, Leavenworth county. John E. Dunham was a constable in the same township. The other defendant in error, N. Hoysradt, obtained three judgments before the said justice of the peace against the two plaintiffs in error. Executions were issued by the justice at the instance of Hoysradt and placed in the hands of the constable. By virtue of two of such executions he levied on a lot of personal property belonging to plaintiffs in error. They bring their action in the district court of Douglas county, alleging that since their rendition these three judgments have been by them paid, and praying that said justice be ordered to enter satisfaction of said three judgments, that said constable be ordered to return the executions and give up to plaintiffs the property seized thereunder, and for an injunction restraining all the defendants from ever attempting to enforce the collection of either of the three judgments. Upon the filing of the petition a temporary injunction was allowed, which afterwards upon motion supported by affidavits was dissolved. Was there error in this last order? We think not, and that it must be affirmed.

1. Actions cIkt 1where brought. The action., it will be seen, is, as against the Dunhams, for acts done by them in virtue of their respective offices, and to control their proceedings as such officers. It is time the charge is that they are confederating with Hoysradt to accomplish the alleged wrongs; but yet they are carrying out but the purposes of this confederation only by using the powers they possess as officers. All the acts charged to have been done by them were done by virtue and under color of their respective offices. They were both officers of Lemervworth county, and the cause of action arose in that county. It does not appear that any act was done by the parties outside of that county. Now, § 48 of the code of civil procedure, (Gen. Stat., p. 639,) reads: “ Actions for the following causes must be brought in the county where the cause or some part thereof arose: * * * * Second, An action against a public officer for an act done'by him in virtue or under color of his office, or for a neglect of Ms official duties.” The language of this section is plain, and needs no comment from us. By it proceedings against public officers for official acts are referred to the courts of the county where the acts are done. It is an expression of the purpose of the legislature to localize suits against officers. It relieves them from the necessity of deciding between the conflicting orders of courts of different counties. They are amenable only to the courts of the county in which they are acting. This may perhaps need to be partially qualified by the statement that where process is issued from the courts of one county to the officers of another, they become for that case the officers of the court from which the process issues, and amenable to its orders.

But it may be said that there is no such restriction as to the defendant Hoysradt; that a suit of this kind may be brought against Mm in any county where he may be summoned, and that the district court of Douglas county, acquiring jurisdiction of him, may properly bring in all other parties. This would be true in cases where the action is not from its nature local. Take a note or an account for instance, which may be sued on in any county in which one of the defendants resides or may be summoned. "When the district court acquires jurisdiction by service upon one, it can bring in all other defendants, though they reside in the remotest parts of the State. Not only that, but it can issue injunctions and attachments to, and appoint receivers to take possession of property in, any county. But on the other hand, if suit be upon a note cmd mortgage, it must be in the county where the land lies. Though one or even all of the makers of a note resided in a county different from that in which was the land, the suit must be in the latter and cannot be in the former county. So in this case; if the action had been brought in Leavenworth county where the cause of action arose, the district court there could acquire jurisdiction of the defendant Hoysradt by service in Douglas county; but the district court of Douglas county could not acquire jurisdiction of this action against the Dunhams though the defendant Hoysradt resided or was summoned within the limits of that county. Eor this reason we think the order of the judge of the district eorirt of. Douglas county dissolving the injunction, as it then stood, was not erroneous.

3. Part paymTsatiStl0U' II. It seems to us proper to express an opinion upon one other question presented and argued by counsel, in order if possible to prevent further litigation between these parties. Whether the ancient rule, that a payment of a part is not a satisfaction of an entire demand, be in force or not, it seems to us that where the right of appeal from a judgment has not lapsed, and the debtor is in a condition and about to take such appeal, but at the instance of the creditor, and with money borrowed from third parties with the knowledge and at the request of the creditor, pays him a portion of the amount of the judgment under an agreement that it shall be in full, the entire judgment is satisfied.

3. Rides serTanda est. We cannot close this opinion without reminding the parties, that to attain the highest success in the profession of law, good is of equal value with legal cunning, and that it is never †0 the credit of an able man that he has taken an unfair advantage of the lesser knowledge of another.

All the Justices concurring.