F. W. Sturges, for plaintiff.

Theo. Laing and Holt & Fowler, for defendants.

BREWER, J. In 1883, by chapter 159, Laws 1883, the legislature authorized the township of Solomon, in the county of Cloud, to issue bonds for building bridges in a sum not exceeding $7,000 in addition to the amount of bonds it was already entitled to issue by law, with the proviso that the manner of issuing said bonds should be in all respects as already provided by law for issuing township bonds. Under this authority an election was held, at which more than a majority, but less than three-fifths, of the votes were cast in favor of issuing the bonds. In 1870 township bonds for bridge purposes were authorized to be issued on a vote of a majority of the qualified voters at an election called therefor. See Laws 1870, c. 33, and Laws 1871, c. 48. In 1874 such bonds were authorized to be issued on a vote of three-fifths of those voting. Laws 1872, c. 68, and Laws 1874, c. 39. The contention of defendants is that these later laws superseded the former, and as three-fifths of the votes cast at this election were not in favor of issuing the bonds and building the bridges, no authority to act therein was granted. The simple question, therefore, is whether the earlier statutes are superseded by the later. It is not pretended that the former are in terms repealed, but the contention is that the latter were in the nature of a substitute for, and therefore superseded, the former. It is familiar law that a later statute will operate as a repeal of a former, though it contains no express repeal, and even though its provisions are not absolutely repugnant to those of the former, whenever it is obvious that the one was intended as a substitute for the other. The rule is thus stated by Mr. Justice FIELD in case of U. S. v. Tynen, 11 Wall. 92: "Even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act." See, also, the following cases: Daviess v. Fair bairn, 3 How. 636; Bartlet v. King, 12 Mass. 537; Com. v. Cooley, 10 Pick. 36; Pierpont v. Crouch, 10 Cal. 315; Sacramento v. Bird, 15 Cal. 294; Swann v. Buck, 40 Miss. 269; Norris v. Crocker, 13 How. 429; Sedg. St. Law, 124.

We think this rule obtains, and that the law of 1870, with its amendments in 1871, was repealed by the law of 1872 and its amendment in 1874. The latter law covers the whole subject-matter of the first, embraces new and different provisions, and was obviously intended to cover the entire field of such legislation. A slight com parison will indicate this. The law of 1870 applied to municipal townships alone, and only gave authority to issue bonds for building bridges. The other applies to counties, cities, and townships, and authorizes bonds for bridges, railroads, and other matters. The one

authorized the issue of bonds up to 10 per cent. of the taxable property, and required only a majority vote. The other authorizes bonds in amount not exceeding, inclusive of all other indebtedness, 5 per cent. of the taxable property, and requires a three-fifths vote. The one provided for bonds of not less than $50 each, the other of not. less than $100 each. By the one, the bonds were to be made payable where the officers of the township directed, and by the other at such place in the city of New York as should be directed. By the one a petition signed by 25 voters was a prerequisite to an election, and by the other a petition of two-fifths of the voters. Without pursuing this comparison further, it is obvious that the latter statute covers the entire ground of the former, embraces new and different provisions, and was obviously intended as a substitute. Evidently, the legislature intended to establish one uniform law, covering these various municipalities, and providing for the issue of bonds for these different purposes, and to that end enacted the law of 1872 with its amendment of 1874. Under this, as three-fifths of the votes were not in favor of the question submitted, it failed to carry, and the defendants had no authority to act.

Counsel refer to the case of Uhl v. Township of Douglass, 27 Kan. 80, in which we spoke of the law of 1870 as still in force, but the question now presented was not suggested at that time, and for the purpose of that case it was immaterial whether the law of 1870, 1871, or that of 1872, 1874, was in force. The decision has no bearing upon the question here presented, and there is nothing said in the opinion which, properly considered, ought to interfere in the least with a full inquiry at the present time.

The judgment will therefore be entered in favor of the defendants for costs.

(All the justices concurring.)

Where, upon a valid judgment in a justice's court, a writ is issued which is in form an order of sale, that is a command to satisfy the judgment out of certain named personal property; when nothing should have issued but a general execution, that is a command to satisfy the judgment out of any personal property not exempt; and where upon such writ the property named is sold, in the presence and without any objection from the defendant, and sold under such circumstances that it could fairly be said to be in the possession of the officer, held that, notwithstanding the irregularity in the proceedings, the title of the purchaser could not be questioned in a collateral proceeding.

Error from Marion county.

Doster & Bogle, for plaintiff in error.

J. Hudson Morse, for defendant in error.

BREWER, J. On November 21, 1881, the firm of Pracht, Schultz & Co. recovered a judgment before a justice of the peace against the defendant for the sum of $260.20. Of the validity of this judgment there is no question. In fact, the judgment was rendered upon the personal admission of the defendant. Thereafter, without issuing execution, and for some inexplicable reason, the plaintiffs filed an af fidavit for an order of attachment. The order of attachment was issued and levied upon certain personal property, to-wit, 50 acres of growing wheat, and upon the determination of this attachment proceeding an order of sale was issued commanding the constable to sat isfy the judgment by a sale of the property attached. Under this writ it was sold to one of the plaintiffs in the judgment, and in the presence and without any objection from the defendant. And the question now is, whether, in a collateral proceeding, the validity of this sale can be challenged by the defendant. We have in this state no form of execution presented by statute. The statute (Comp. Laws, p. 723, § 139) simply directs what the execution shall contain, and the order of sale contains all the requisites of an execution prescribed by said section, except in this respect: That section provides that the process direct the officer to collect the amount of the judgment out of the personal property of the debtor. This reciting a levy of an order of attachment upon the specific property, commands the of ficer, out of said goods, to cause the said judgment to be satisfied. In other words, instead of being a general execution commanding the officer to satisfy the judgment out of any personal property of the de fendant, it was a special order commanding him to satisfy it out of

certain named property. Upon the process, and in the presence of the defendant, the property was sold. No motion was made to set aside the process or the sale; in fact, there was no direct attack upon the proceedings; and, the question is whether those proceedings were so irregular and defective that they must be adjudged void, and therefore open to collateral attack.

It is conceded that the attachment proceedings amounted to nothing. The statute makes no provisions for an attachment after judgment, nor indeed in such case is there any need of such proceedings. The only purpose of an attachment is to seize and hold the property until the claim of the plaintiff can be adjudicated. After judgment an execution will seize anything that an attachment order would, so that the latter is unnecessary. Being therefore unauthorized by statute and unnecessary, it may be disregarded, and the question really comes down to this: if the justice issues a writ commanding the officer to satisfy the judgment out of certain personal property, when he ought to have issued a writ commanding him to satisfy it out of any personal property, is this writ and a sale under it void? We think not. The greater includes the less. The power to command the seizure and sale of any personal property included the power to seize and sell certain specific property. Swiggart v. Harber, 4 Scam. 364; Rockwell v. Jones, 21 Ill 279; Corriell v. Doolittle, 2 G. Greene, (4 Iowa,) 385; Lessee of Paine v. Mooreland, 15 Ohio, 436; Cooley v. Brayton, 16 Iowa, 10; Porter v. Haskell, 11 Me. 177. Doubtless such an order is irregular and could be set aside on motion; but, if the defendant makes no objection, permits the sale under it, he should not be permitted thereafter to object that it is void. The defect is not a want of power, but a mere irregularity in proceeding, and in collateral proceedings mere irregularties, are not sufficient to defeat the title. Paine v. Spratley, 5 Kan. 525; Freem. Ex'ns, § 343, and cases cited in the note.

But it is further objected that under this order of sale the officer would make no levy; that the levy under the order of attachment was a nullity; and that a levy is indispensable to a valid sale. A levy means this, and nothing more,—the taking possession of property by the officer. When there is possession, absolute or constructive, there is a levy, and in any collateral proceeding it is enough that there was such possession. Here the only possession which could be taken of the property was in fact taken under the order of sale. Now, although such taking of posession was unauthorized, yet the officer could do no more if he had been authorized; and, having taken such possession, and being in such possession, he made all the levy that was necessary to uphold his sale. He could have taken no further possession if a general execution had been placed in his hands. Hence, we think that all the levy that was indispensable was in fact made. Freem. Ex'ns, § 274.

We conclude, therefore, that notwithstanding the defects, they were

not sufficient to invalidate the proceedings as against a collateral attack, and the judgment of the district court must be reversed, and the case remanded for a new trial.

1. Where in an attachment action against a non-resident, after service by publication and without any appearance, judgment is rendered against the defendant, and upon such judgment a writ is issued, which, instead of being simply an order of sale, is a command to satisfy the judgment out of any goods and chattels of defendant, and for want of goods and chattels, out of the specific real estate attached in the action, and on such writ a portion of the said real estate is sold, held, that while the form was irregular, yet the irregularity was not sufficient to avoid the writ or vitiate the sale made under it.

2. Generally speaking, neither the process nor the action taken under it will be adjudged void, when the very thing which ought to be done is specifically commanded and only that thing is in fact done.

3. Where, in an attachment action, the judgment is for the recovery of so much money and the costs of the action and the sale of the attached property, the judg ment for costs is a lien on the attached property, and may be enforced by an order of sale.

4. Where the attachment was levied on a quarter section of land, which tract was appraised as a whole, and on a process thereafter for the collection of the judg ment for costs, one quarter of said quarter section was levied upon and separately appraised and sold, said last-mentioned tract being amply sufficient to satisfy such judgment, held, that neither the failure to sell the entire tract taken on the attachment order, nor the subsequent appraisement of the one-fourth part by itself, nor the sale conformably to such last appraisement, were defects which could be taken advantage of in a collateral action.

5. Where an execution is issued reciting a judgment in favor of the plaintiff for so much costs, and on this execution a sale is made to a stranger to the action, held, that his title will not be defeated by the mere fact that the journal entry of the judgment fails to state the amount of costs taxed. In the absence of the appearance and judgment dockets it will be presumed that the costs were properly taxed on them and that the amount stated in the execution was correct.

Error from Saline county.

Carver & Bond, for plaintiff in error.

John Foster, for defendant in error.

BREWER, J. This was an action of ejectment brought by plaintiff in error (plaintiff below) to recover the possession of the N. E. of the N. W. of section 35, township 14, range 4, in Saline county, Kan