Ferguson v. Smith

10 Kan. 396

Opinion

The opinion of the court was delivered by

Valentine, J.:

An order of attachment was issued in this case in favor of the plaintiff in error as plaintiff below, and against the defendants in error. The attachment was dissolved, first, on motion of Joseph M. Wiggins and others who were judgment-creditors of the defendants, and not parties to the suit, and second, on motion of the defendants themselves. It will not be necessary for us in this case to examine the question whether an attachment can be dissolved on the motion of a judgment-creditor who is not a party to the suit; for upon the motion of the defendants themselves, who have an undoubted right to make such a motion, it will be necessary for us to examine the merits of the attachment and to examine and decide every question which was raised by the motion made by the judgment-creditors, except the question as to the right of the judgment-creditors to make the motion. The two motions are in every other respect identical. Indeed, we could not in this case properly examine or decide the question of the right of the judgment-creditors to make the motion, for they have not been made parties in this court by the petition in error, (Ferguson v. Smith, just decided, cmte, p. 394,) and we are not asked in this case to decide any such question.

1. Christian tiai letters. I. It is claimed that the order of attachment and other papers in this case omit the Christian names of the parties. This is in one sense true. Said papers do not give the full christian names of all the parties, but give the initial letters thereof only. This we think is sufficient. The reason upon which a different rule was once founded in England has never existed in this state. And when the reason for the rule has ceased the rule itself should cease. Cessante rations legis, eessat ipsa lex. The full Christian name is now seldom written anywhere. Search the records of our courts, our statutes, the lists of members of the legislature, election returns, written contracts, and other written instruments, newspapers, etc., and everywhere it will be found that as a rule the initials only of the Christian name are 'used. Of course, the court might for good cause shown require that the Christian name be written in full. But still, in consideration of the almost universal custom of using the initial letters only of the Christian name, it is our opinion that no written instrument can at the present time be regarded as a nullity simply because the Christian name of some person mentioned therein has not been written in full. And in any case, before a court can set aside a proceeding had in the court, or make-any order against a party, because the Christian name of any person mentioned in any paper in the court has not been written in full, the court must first give ample time and opportunity to the party interested to have the name written in full.

2. undertaking dence^¿uffi-i_ ciency. ^ II. It is also claimed that the affidavit of justification of the sureties on the attachment bond is not sufficient. It is claimed that it is not shown by the bond that said sureties are residents of the state. Is it necessary that bond should show it? The bond was regularly approved by the clerk; (§192 of the code; Laws of 1870, page 172, §5.) Does it not therefore devolve upon the other party to' show that the sureties were not at the time the bond was executed residents of the state? But it is sufficiently shown that the sureties were residents of the state. The bond shows that they were residents of “ Chetopa, Labette county,” ancl they justified in the “State of Kansas, ■Labette county.” This is sufficient prima fade to show that the sureties resided in the state of Kansas. It is also claimed that the sureties were not shown to be worth double the amount secured. The bond was for more than double the amount secured, and the sureties were shown to be worth more than the amount of the bond. Hence they were shown to be worth more than double the amount secured. It is further claimed that said sureties were not shown to be worth any sum above their debts. It is shown that they were-“worth the sum of $1,862 over and above all liabilities and exemptions.” We suppose that a debt is a liability; that the word “liabilities” includes debts, and therefore that it was shown that the sureties were worth the sum of $1,862 over and above all exemptions, debts and other liabilities. We think the court might have required an amendment of the justification so as to have made it conform to the language of the statute; (Code, § 724; Robinson v. Burton, 5 Kas., 293, 300;) but the court could not arbitrarily, and without giving any opportunity to amend, dissolve the attachment for such a slight discrepancy as may be found between this justification and the statute. It is also claimed that the affidavit of justification says that the sureties, “are liable to execution.” What if it does? The attachment should not be dissolved for that reason alone. A surety might be liable to an execution, and be ample security for a hundred times the amount to be secured. But the affidavit of justification does not say that the sureties are liable to an execution. It substantially says that the sureties have $1,862 over and above all their liabilities and exemptions which would be liable to be taken on an execution.

3. Deputy clerk may administer oaths. III. It is claimed that the affidavit for the attachment was not sworn to. It was in fact sworn to before the deputy clerk of the district court. But it is claimed that a _ , , deputy clerk has no power to administer an oath, and therefore that the affidavit was not in law sworn to at all. We think otherwise. All ministerial officers were at common law empowered to appoint deputies; (Whitford v. Lynch, ante, p. 180, and cases there cited.) But clerks of the district courts are specially authorized by statute to appoint deputies in this state. (Gen. Stat., 287, § 149.) There is no statute defining the powers of the deputy district clerks, and there is no statute establishing any limitation upon their powers. So far as anything is expressed in the statutes, the deputy clerk of the district court may do anything that the clerk himself may do; and such is the natural inference to be drawn from the statutes. The very article that authorizes clerks of the district courts to administer oaths also authorizes clerks of the district courts to appoint deputies; (Gen. Stat., 287, art. 11, §§ 151, 149.) Section 720 of the code provides that “Any duty enjoined by this code upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.” (Gen. Stat., 771, § 720.) And section 723 of the same code provides that “A ministerial officer whose duty it is to take security in any undertaking provided for by this code, or by other statutes, shall require the person offered as surety to make an affidavit of his qualifications, which affidavit may be made before such officer, and shall be indorsed upon or attached to the undertaking.” (Gen. Stat., 771, § 723.) We quote this to show that a ministerial officer may by statute administer an oath. Also, notaries public, county clerks, and registers of deeds are authorized to administer oaths; (Gen. Stat., 598, § 1;) and they are all ministerial officers. The power to administer oaths is however an incident to all courts. It belongs to all courts. Whenever a court is created, that power is also necessarily created as being a necessary incident to the court. But such power does not belong exclusively to courts. When exercised by a ministerial officer it is purely a ministerial power, and the act of the officer is a ministerial act. This power is given to the clerk of the district court, and either he or his deputy may exercise it as a ministerial power. It is not in its nature anything like judicial power. It has none of the attributes of judicial power. It does not require the exercise of judgment, discre tion, discernment, or discrimination, as the exercise of judicial power does. It is essentially in its nature ministerial. If it were not a necessary incident to courts no one would ever suppose that it had any of the attributes of judicial power. (As throwing some light upon this question see Amrine v. K. P. Rld. Co., 7 Kas., 178; Whitford v. Lynch, supra; Huey v. Van Wie, 23 Wis., 613.)

4. Affidavit for nateeofnt’ plaintiff’s claim. IV. It is claimed that the affidavit for attachment does not state the nature of the plaintiff’s claim. It does, however. The claim was for “the sum of $930.85, now due and payable to the said Ferguson from the said to ° Smith & Dunham on an account for merchandise sold by the said Smith & Dunham as auctioneers on commission for the said Ferguson.” If this was not sufficiently definite and certain the defendants should have stated in their motion to dissolve the attachment wherein and in what particular it was not sufficiently definite and certain, so as to give the plaintiff an opportunity to amend the affidavit. This the defendants did not do; and the defect in the affidavit, if there is any such defect, is not obvious.

5. statement of attachment. V. It is also claimed by the defendants that the affidavit for attachment was insufficient because “ It purports to set forth the grounds of the attachments in the words of the statute by way of conclusion, yet states that one 0f the above-named debtors has absconded instead of one of the defendants.” Frank Smith is one of the parties to this action. The action was brought against Frank Smith and E. A. Dunham, partners as F. Smith & Co. He is and was when the affidavit was filed one of the defendants, and the affidavit so showed it. It was also alleged in the affidavit that he was one of the debtors of the plaintiff. The part of the affidavit claimed to be defective as stating “debtor” instead of “defendant” reads as follows: “The affiant further says that Frank Smith, one of the above-named debtors, has absconded with intent to defraud his creditors.” The statute under which this part of the affidavit was intended to be drawn reads as follows: “When the defendant, or one of several defendants, has absconded with the intention to defraud his creditors.” (Sec. 190 of the code; laws of 1870, page 171, §4, subdiv. 2.) The point made is.íoo fine. We shall not discuss it. The affidavit was good enough. How Frank Smith could have .absconded when considered as a debtor, and not have absconded when considered ás a defendant, we are entirely unable to comprehend.

The order of the court below dissolving and vacating the order of attachment on the motion of the defendants must be reversed, and cause remanded for further proceedings.

All the Justices concurring.