Nelson v. Stull

Citations

• 65 Kan. 585
• 68 P. 617
• 1902 Kan. LEXIS 95

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Garnishment — Wisconsin Construction Adopted. The law of Kansas relative to garnishment was taken substantially from the statutes of the state of Wisconsin. Prior to its adoption here, the supreme court of that state held that under it “ an executor or administrator is not subject to garnishment before a final order for the distribution of the estate is made.” (The J. I. Case Threshing Machine Co. v. Miracle, Fx’r, Garnishee, 54 Wis. 295,11N. W. 580.) Held, that by the adoption of the statute the construction given to it by such court was also adopted, and this court does not feel at liberty to depart therefrom,</p> <p>2. -Fraudulent Conveyances — Limitation of Actions. Recovery in this action as against a garnishee depended on the question whether certain conveyances, which had been made to him by the principal defendant, were fraudulent and void. This issue was not presented by formal pleadings, but was developed by tbe evidence on the trial, and was the theory on which the garnishment proceeding was conducted. Held, that such proceeding was “an action for relief on the ground of fraud,” within the meaning of the third subdivision of section 18 of the code of civil procedure (Gen. Stat. 1901, §4446), and as such must be brought within two years from the date of the discovery of such fraud.</p> <p>3. Attachment — Claims not Due. The remedy of attachment on claims not due, for which provision is made in sections 230 and 231 of the code of civil procedure (Gen. Stat. 1901, §§ 4677, 4678), is a right given a creditor, and not simply a matter of grace spring-. ing from the discretion of the court or judge.</p>