53 Kan. 131 | Kan. | 1894
The opinion of the court was delivered by
The defendant in error, W. H. Gillam, held a chattel mortgage executed by his son, W. N. Gillam, on a stock of groceries. The plaintiff in error, who was defendant below, as sheriff of Sumner county, levied two attachments on the stock, one in the suit of Beckman, Mercer & Co. v. W. N. Gillam, and the other of Austin Bros, against the same party. The plaintiff appeared by motions in those suits, asking that the goods be discharged from the attachments, on the ground that they were his property under such chattel mortgage, and not the property of the defendant in the actions. These motions were heard and sustained by the court, and the property returned to the plaintiff. He thereupon commenced this action against the sheriff to recover damages occasioned by the unlawful seizure of the property. There is no averment in the petition that the sheriff was actuated by fraud, malice, or a disposition to oppress, but the case presented is solely of an unlawful seizure of the plaintiff’s' property under writs issued against his son. The case was tried by a jury,
The point urged by the plaintiff in error, that there is no proof of indebtedness secured by the chattel mortgage, is not well taken. The goods appear to have been in the possession of the plaintiff below, and the court, on motion to release them from the attachments, decided necessarily that his possession was rightful.
The next question is as to the measure of the plaintiff’s right of recovery. This question was presented through the course of the trial, on the introduction of testimony, on the instructions, and by the special questions which the defendant asked to have.submitted to the jury. We think the contention of plaintiff in error, that this case is to be treated as though the questions here involved were being tried in an action of replevin to recover the goods and damages for their unlawful detention, is correct. By the motions in court, the plaintiff regained his specific property. He now is entitled to damages for their unlawful detention; but we think the rules determining the measure of such damages are such as would prevail in an action of replevin, and that the ease of Winstead v. Hulme, 32 Kas. 568, correctly declares the rule applicable. We quote from the syllabus in that case:
“1. In an action to recover the possession of personal property, the plaintiff is not entitled to recover as actual damages attorney’s fees for the prosecution of the case, when the elements of malice, gross negligence or oppression do not mingle in thé controversy.
“2. In an action against a sheriff to recover the possession of personal property wrongfully seized by the officer under an execution in his hands, the sheriff, if not guilty of fraud, malice, gross negligence or oppression in the execution of the process, is not liable in vindictive or exemplary damages.”
The judgment must be reversed, and a new trial ordered.