Tatlow v. Bacon

Citations

• 101 Kan. 26
• 165 P. 835
• 14 A.L.R. 269
• 1917 Kan. LEXIS 7

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Execution Against the Person' — Fraud — Statute Constitutional. The statutory provision that an execution may issue against the person of a debtor for certain fraudulent acts is not violative of section 16 of the bill of rights, which prohibits imprisonment for debt except in cases of fraud, nor of the limitation against cruel and unusual punishment.</p> <p>2. Same. The act does hot conflict with the fourteenth amendment of the federal constitution.</p> <p>3. Same — Debtor Entitled to Hearing — Notice—Implication of Statute. As the statute provides that before issuing an execution the court or judge must be satisfied from evidence produced that the statutory grounds upon which it may issue exist, it is obvious th^t the legislature contemplated that a hearing should be had and that notice of the hearing should be given to the debtor.</p> <p>4. Same — Notice of Hearing Implied. The rule applied that a statutory provision for such notice and hearing need not be made in the statute in express words but may be implied.</p> <p>5. Same — No Jury Demandable. In such a proceeding a jury trial may not be demanded as a matter of right.</p> <p>6. Same — Construction of Statute. Where a statutory provision refers to a section of the statute by the wrong number and it is manifest from the context that another section was the one intended by the legislature, the wrong number will be disregarded and the correct one will be deemed to be substituted.</p> <p>7. Same — Requisites of Affidavit. In an affidavit made to obtain the issuance of an execution against the person, mere conclusions are not sufficient. The facts upon which the charges of fraud are based should be specifically stated.</p> <p>8. Same — Facts Determined in Original Case• — Conclusive Against Debtor. Where the charges of fraud against the debtor were properly put in issue and determined in the original case, the facts so determined by the judgment are conclusive between the parties