McClelland v. Cragun

54 Kan. 599

• Court: Supreme Court of Kansas
• Decided: January 15, 1895
• Status: Published

Opinion

The opinion of the court was delivered by

Allen, J.:

James Bullen & Co. brought suit in the district court of Kingman county against the Kingman County Driving Park and Pair Association. Por good cause, a change of venue was taken to Stafford county, and thereafter a judgment was rendered in favor of plaintiffs against the fair association for $3,393.28. On this judgment, execution was issued, and returned unsatisfied in part. Thereafter a notice was served on the defendant in error, as one of the stockholders in the fair association, of which the following is a copy:

“State of Kansas, Stafford County, ss.

“In the District Court in and for said County and State. “James H. Bullen & Co., Plaintiffs, v. The Kingman County Driving Park and Fair Association et al., Defendants.

“Motion to Charge Stockholders of the Defendant Fair Association with Judgment in said Cause.

“Come now the plaintiffs herein, by Wallace & Smoot, their attorneys, and move the court for an order for an execution to issue against the stockholders of the defendant corporation, charging them with the amount of plaintiffs’ judgment herein unsatisfied, an execution having been issued against the defendant, the Kingman County Driving Park and Fair Association, and returned by the proper officer as ‘ No property found whereon to levy such execution.’ The stockholders of said defendant corporation sought to be charged by this motion are named as follows, each share representing stock to the amount of $1'00:

Name.

John A. Cragun. Kingman, Kas.

“The above motion will come on for a hearing by said court on the llfh day of October, 1889, and will be heard on oral and record testimony. Wallace & Smoot,

Attorneys for Plaintiffs.”

After the service of this notice, Bullen & Co. filed in the district court of Stafford county their motion praying for an order for execution against the defendant in error for $100, which the court thereupon granted. In pursuance of this order, an execution was issued by the clerk of the district court, directed to the sheriff of Kingman county, where Cragun resided, for the collection of said sum of $100. On such execution was indorsed, “Clerk’s costs on this execution, $1.60.” The sheriff, being about to levy on the property of Cragun, an action was brought by him against the sheriff to enjoin him from so doing. This cause was removed to Reno county for trial. The defendant demurred to the petition, which set up the facts above stated. This demurrer was by the court overruled, and, the defendant not desiring to further plead, judgment was rendered on the demurrer, perpetually enjoining the levy of the execution. The defendant below brings the case here alleging error in the ruling on the demurrer.

1. petition in error — jurisamoSSt-costs. The first question brought to our attention is, whether there is more than $100 in controversy in this court. The order of the district court of Stafford county was for an execution for just $100. Had proceedings in error been attempted from that order, the amount involved wóuld have been barely $100, and this court consequently without jurisdiction. (Gen. Stat. of 1889, ¶4642; Richmond v. Brummie, 52 Kas. 247.) The payment of $100 at that time would have discharged Cragun’s liability, but the payment was not made, and execution for its enforcement was issued. With the costs of this execution Cragun ° is chargeable, if the order against him is valid. This, added to the amount for which execution was ordered, became the amount in controversy in this action, and is sufficient to confer jurisdiction on this court.

Many objections to the validity of the order of the district court of Stafford county are urged. It is contended that the proceeding to obtain execution against Cragun as a stockholder was a new, original, independent suit against him. The case of Howell v. Manglesdorf, 33 Kas. 194, is cited in support of this contention. It was held in that case that the service of notice on a stockholder, outside of the state of Kansas, could not confer jurisdiction on a court of this state. No opinion, however, was expressed as to whether a notice could be served in a county other than that in which the proceeding was instituted. The section of the statute which it is claimed authorizes the order made by the district court of Stafford county is ¶ 1192 of the General Statutes of 1889, and reads as follows:

“ If any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot be found any property whereon to levy such execution, then execution may be issued against any of the stockholders to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon; but no execution shall issue against any stockholder, except upon an order of the court in which the action, suit or other proceeding shall have been brought or instituted, made upon motion in open court, after reasonáble notice in writing to the person or persons sought to be charged, and, upon such motion, such court may order execution to issue accordingly, or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment.”

2. Corporation agaiñststooknoider. The distinction between the proceeding by motion under this section to obtain an order for execution, and that by civil action, as well as the difference in legal effect between the order for execution and an ordinary judgment, were pointed out in-the case of Hentig v. James, 22 Kas. 326. Article 5 of the code of civil procedure, designating the county in which actions are to be brought, has no application in this case. The section above quoted designates the court before which a motion to charge a stockholder must be brought, and that is the court in which the action, suit or proceeding shall have been brought or instituted. No matter where the stockholder resides, an execution against him can only be ordered by and issued from the court where the judgment was rendered. In this case, while the suit was originally instituted in Kingman county, it was removed to Stafford county, where judgment was rendered. Though the strict and literal reading of the statute might be said to require that the motion should be made in the court where the petition was originally filed, the reasonable interpretation of the law is, that the court where the case was tried and the judgment rendered is the one intended, and it is not a strained construction to hold that the action was brought in the Stafford county court. The reason for requiring motions to be made in the court where the rec-; ord of the judgment is kept is obvious. The execution, when issued, is for the purpose of satisfying that judgment. And whenever sufficient money has been made on execution, either against the principal defendant or against stockholders, the sheriff’s return to that court should show the fact of the satisfaction of the judgment. Where execution is issued on any judgment, it is always out of the court on the record of which the judgment is entered. In Fisher v. Franklin, 38 Kas. 251, and again in Reynolds v. Nelson, 40 id. 41, it was held that, where an execution was issued to the sheriff of a county other than that in which the judgment was rendered, a proceeding to amerce the sheriff was properly instituted in the court where the judgment was entered. We think the district court of Stafford county was the proper tribunal before which to make the motion.

3. notice.6 of

4. Notice andcient to confer jurisdiction. It is urged that the notice is insufficient, (1) because it was not issued by any person having authority to issue process of the court; (2) because it is insufficient in form and substance; (3) because it was not served by anyone having lawful authority to make such service; (4) because it was served outside of Stafford county. A notice signed by the attorneys for the plaintiff was sufficient. A summons was not required, nor would it have been proper. (Gruble v. Wood, 27 Kas. 537; Wells v. Robb, 43 id. 201.) While the notice served in this case is not as formal as it might have been, it contains all that is necessary to inform the party on whom it was served of the nature and terms of the order to be applied for, and could hardly be misunderstood by anyone able to read. It complies substantially with all the requirements of § 534 of the code of civil procedure. It is true that it does not in terms state the place where the motion will be made, but the designation of the court, which could sit lawfully only at the county seat of Stafford county, must be held a designation of the place. Where an application is to be made to a judge at chambers, or to any court which might sit at different places, the requirement that the notice designate the place would be material, and compliance with it essential to the validity of the notice. It must be borne in mind, also, that this is a collateral attack on the jurisdiction of the court, and in the petition filed in this case it is expressly stated that James Armine, a constable of the city of Kingman, served this notice on the plaintiff at his place ot business in Kingman. As L ° against a collateral attack, we hold the notice sufficient. The service by a constable was good, being expressly authorized by § 535 of the code.

We have sufficiently considered the objections to the jurisdiction of the district court of Stafford county. Under the facts stated in the petition filed in this case, the order for execution was valid, and no good ground is stated for enjoining the sheriff from levying on the property of Cragun under the process in his hands. The district court erred in overruling the defendant’s demurrer. The judgment is reversed, with directions to sustain the demurrer to the plaintiff’s petition.

All the Justices concurring.