Kansas City Live Stock Commission Co. v. Bank of Hamlin

Citations

• 79 Kan. 761
• 101 P. 617
• 1909 Kan. LEXIS 278

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Election oe Remedies — Attachment — Waiver of Mortgage Security. The holder of a promissory note which is secured by a chattel mortgage does not waive or lose his mortgage security by attempting to collect the note by proceedings in attachment or other recognized process provided by law for the collection of debts.</p> <p>2. - Same. The holder of a promissory note which was secured by a chattel mortgage commenced an action on the note before it was due, and took steps to obtain an attachment therein, but did not do so. A motion was made by another attaching creditor of the maker of the note to dissolve the proceedings taken by the holder of the note to obtain an attachment. While this motion was pending the holder of the note dismissed its action without prejudice and filed an inter-plea in the pending attachment action. In this interplea it claimed a lien upon the attached property by virtue of its mortgage, the note having matured and being then past due. A motion to dismiss the interplea upon the ground that the remedy under the mortgage was inconsistent with that sought to be obtained in the former action of attachment was allowed. Held, error.</p>