24 Kan. 280 | Kan. | 1880
The opinion of the court was delivered by
This was an action of replevin, brought, by Simon Shew against J. D. Blair, to recover some horses, and a wagon and a harness. The property formerly belonged
The plaintiff below (defendant in error) has filed no brief, nor made any other appearance in this court; but we should think from the record of the case that he based his right to recover upon the following grounds, to wit: 1. All the different levies of said attachments and the orders made by the justice for the sale of the property were void — void absolutely and entirely; 2. The property was exempt from attachment, under the exemption- laws.
The plaintiff was probably not entitled to recover upon either of said grounds; for the said levies were probably not void, and the plaintiff* -was probably not a resident of Kansas, so as to be entitled to the property under the exemption laws. (Comp. Laws of 1879, pp. 437, 438.)
“2d. The court instructs the jury that if from the evidence they believe defendant Blair levied an attachment on the property of the plaintiff on Sunday, August 3d, 1879, such levy would be illegal; and the defendant could not avail himself of such illegal use of the process of the court to hold such property until the next day, and then levy new or alias attachments on said property while so in his possession, and if from the evidence they find he has done so, the levy of such attachment would be no justification for the defendant, and your verdict should be for the plaintiff.
“3d. The court instructs the jury that if from the evidence they believe the defendant levied an attachment on the property of the plaintiff described in the petition on Sunday, August 3d, 1879, while'the plaintiff was passing through said county, and took the same from the possession of the plaintiff on that day and came with it to Hiawatha, and held it until Monday, August 4th, 1879, and then levied a new or an additional or an alias attachment or attachments on said property while so in his possession, then, the plaintiff not being a resident of said county, such levy would be illegal.”
“5th. The court instructs the jury that if they find from the evidence the defendant levied on the property of the plaintiff' while he was peacefully passing through or had come into and was going out of Brown county, Kansas, on Sunday, August 3d, 1879, for the purpose of holding said property until a secular and lawful day for levy thereon, and then levied new or alias attachments on said property while so in the possession of said officer, such, levies would be unlawful, and in that case the plaintiff should recover, provided that in his ordinary course of travel the plaintiff would have passed out of said county of Brown on said Sunday.”’
We think the foregoing instructions are erroneous.
I. Said levies of said attachments were not void, but at most were only voidable, and being only voidable, they cannot be set aside or ignored in this proceeding, which attacks them only collaterally. The first levy, however, which was made on Sunday, we shall, for the purposes of this ease, consider as void; but we cannot consider the other two levies, which
II. But even if all of said levies were void, can the plaintiff in this present action maintain replevin for the property? In order to procure a writ of replevin, he must file in the clerk’s office an affidavit showing that the property was not taken from him on any “ mesne or final process issued against said plaintiff.” (Comp. Laws of 1879, p.623, §177, sub-div. 4.) And according to the decision made tin the case of McGlothlin v. Madden, 16 Kas. 466, it makes no difference whether such process is valid or void. In that case it was held under its peculiar circumstances that replevin would not lie against an officer who had seized property by virtue of an execution against the owner, although such execution was not founded upon any judgment against [the owner. Of course, replevin will lie to recover from an officer property which is exempt from process under the exemption laws.
Because of the errors of the court in giving said instructions, the judgment of the court below will be reversed, and the cause remanded for a new trial.