Tootle, Hanna & Co. v. Smith

34 Kan. 27

Opinion

The opinion of the court was delivered by

Horton, C. J.:

It is conceded that the affidavit for attachment was defective, by reason of the omission of the amount sued for. Upon the hearing of the motion to dissolve, the district judge decided the affidavit void. (Robinson v. Burton, 5 Kas. 293.) The first complaint is, that the judge erred in not granting the plaintiffs leave to amend the affidavit. The insufficient affidavit was sought to be cured by a new affidavit, relating back to the original, signed by William Peake, and verified before John S. Harbison, the attorney of record of plaintiffs. This was unauthorized, and the judge properly rejected such new or amended affidavit. (Code, §§344,345,350; Foreman v. Carter, 9 Kas. 681; Warner v. Warner, 11 id. 121.) As no sufficient steps were taken by plaintiffs to cure or amend the original affidavit, the judge committed no, error in dissolving the attachment. It is therefore useless to discuss the affidavits used upon the hearing. The defective and insufficient affidavit, in the absence of a. sufficient amendment, settled the whole matter against the plaintiffs.

The order of the district judge will be affirmed.

All the Justices concurring.