59 Kan. 728 | Kan. | 1898
These cases are identical in all respects, and may be considered and disposed of together. They are appeals from sentences of the district court imposing punishments for contempts of its order and process. The operation of the Leavenworth, Topeka and Southwestern Railroad was abandoned in .1894 by the corporation owning it. J. C. Stone claimed that by the terms of a right of way deed executed to the railroad company, its cessation of the operation of the line worked a forfeiture of the easement over his land, and a restoration to him of the right of way. He instituted an action to declare the forfeiture, to restore his possession, and quiet his title. To this action the railroad company and the American Loan and Trust Company, a mortgagee of the railroad, were made defendants. Service was made upon both of them by publication. The trust company made no appearance in the case. The railroad company, failing to secure its dismissal from the action upon a claim of invalidity in the service upon it, filed an answer to the plaintiff’s petition. Soon after the institution of this action one C. T. McLellan was appointed .receiver
The sheriff went to the portion of the right of way in question and put Stone in possession, specially appointing an officer to assist him in maintaining it. They placed obstructions upon the portion of the railway track claimed by them. The appellant, Chaplin, was a minor official in the employ and acting under the instructions of McLellan, the receiver. The appellant, Atwood, was an attorney of the receiver. He advised Chaplin to disregard the claimed rights of Stone and the process under which possession of the disputed right of way had been taken. Together the appellants visited the place in question and caused the removal of the obstructions placed upon the track, whereupon trains began and continued to run over it as before. Atwood and Chaplin were thereupon attached and fined for contempt of the judgment and process of the court, and, as before stated, they have appealed from the sentences of conviction.
These sentences cannot stand, for two sufficient reasons. First, the receiver was not a party to the
“The doctrine seems to be generally established that persons who were not made parties to the ejectment, and who were in possession before it was instituted, or who claim under titles distinct and independent from or paramount to the title litigated in the ejectment, cannot be evicted under the writ.” Sedgwick & Wait on Trial of Land Titles, § 562; Wilson v. The State, 115 Ala. 129.
Of course, if one not a party to an ejectment action could not be evicted under the writ of possession, because not a party to the suit in which the process was issued, he could not be a violator of the writ or in contempt of the court issuing it if after the service he interfered with the plaintiff's possession.
But it may be suggested that the command of the writ was not alone to put the plaintiff in possession, but also to maintain him in the possession, and that a deputy under the sheriff was endeavoring to enforce the command of that portion of the writ.' We pass by a question raised by appellants whether the writ in this respect conformed to the judgment of the court, and also pass by a question raised by them whether the deputization of the person put by the sheriff in charge o fthe premises was in sufficient legal form to confer upon him any authority. In the view we have taken of the case the determination of these questions
The sentences of conviction of the court below are reversed, with directions to discharge the appellants.