Boyd v. Huffaker

39 Kan. 525 | Kan. | 1888

Opinion by

Clogston, C.:

It is claimed that the turning-over of the cattle to the receiver upon the order of the court is a complete answer and defense to the action against the sureties on the redelivery bond. Where property is in the custody of an officer, and for the purpose of holding the property a redelivery bond is given, and afterward a receiver is appointed by the court in an action against the owner of the property, and the officer is ordered to turn the property over to the receiver, and it is so turned over, we think is a good defense from that time forward in an action for the possession of the property. The receiver, being an officer of the court, would hold the property subject to such order as the court might make, and whoever might finally be determined to be the owner of the property, the receiver would be accountable to him for it. But such a defense, like every other, to be available must be pleaded in the proper action and at the proper time. If the sheriff or his sureties on the redelivery bond desired to avail themselves of such a defense, they ought to have filed a supplemental answer setting up the facts. This would have relieved them of the wrongful detention, and from a judgment being rendered against them for a return of the property, or for its value. They would still be liable for damages, if the plaintiff sustained any, for the wrongful detention of the cattle from the time they were taken up to the time they were turned over to the receiver. But in this action the defendants did not set up or allege the turning-over of the cattle to the receiver as a defense to the action; and not having so pleaded, it is no defense now to the action on the redelivery bond. "Whatever might have been pleaded as a defense to the first action, and what would have constituted a good defense, is barred now in this action on the bond, for whatever defense the sheriff might have made binds his sureties on the redelivery bond as fully as though they had been parties to that action. This being true, then so far as the allegation of turning the cattle over to the receiver is concerned, it is no defense to this action. But the fact that the cattle were turned over to a receiver, and by him sold, and the further fact that the plaintiff made application for the proceeds of such sale, and received a large part of the money, is such a recognition of the proceedings as will bind the plaintiff and estop him from denying the proceedings so far as the amount received by him, as well as the amount retained by the receiver under the order of the court. By the application for the money he claimed the same as his own. This he might do, but in so doing he bound himself to look to that fund for the amount of the sale of the property in the hands of the receiver; the defendants being liable on the bond for the remainder of the value of the cattle, they having waived that defense by their failure to set up the facts in the replevin action, and they cannot now be heard to complain because the cattle failed sell for the amount the jury found they were worth in July. Cattle might have depreciated from July to December; but whether from that reason, or that at the receiver’s sale they were sold for less than their actual value, cannot now be inquired into. While the fact that the cattle were turned over to a receiver is no defense, yet the proceeds of such sale, being in the hands of the court, and held by it subject to the creditors of the plaintiff, is as good a defense, so far as it goes, to the action on the bond, as if the defendants had paid to the plaintiff or deposited with the court that much money for the plaintiff, to apply on his damages; the plaintiff having made his application for the proceeds long after the replevin action was tried. Therefore the answer was a good defense as a plea of payment for that amount, and being a good defense to a part of the plaintiff’s claim, the demurrer was properly overruled.

The record seems to show that the court, after the demurrer was overruled, rendered judgment on the pleadings for the defendants. Under the view herein expressed, we think the court erred in rendering judgment for the defendants, but if submitted upon the pleadings should have rendered judgment thereon in favor of the plaintiff for the difference in value of the cattle as found by the jury in the replevin suit and the amount for which the cattle were sold at the receiver’s sale. It is therefore recommended that the judgment of the court below be reversed, and that the cause be remanded, with the order that further proceedings be had in accordance with the views herein expressed.

By the Court: It is so ordered.

All the Justices concurring.