47 Kan. 188 | Kan. | 1891
Opinion by
On the 25th day of January, 1888, Mrs. Carr commenced this action in replevin against Huffman, who was the sheriff of Hamiltori county, to recover possession of a piano, of the alleged value of $300, that the sheriff had seized under an execution against the husband of Mrs. Carr. This piano was situated in Kearny county, then attached to Hamilton county for judicial purposes. She gave bond for costs, and an undertaking in replevin, the sureties on which were approved by the clerk of the district court; filed the necessary affidavit; and an order of delivery was issued to the coroner of said county, that was served and duly returned with a redelivery bond, with sureties, in the sum of $600. After this, Huffman filed an answer, consisting, first, of a general denial; and second, that as sheriff as aforesaid, under an execution against Sam. H. Carr, he had levied on the piano as the property of Carr. Afterward, the attorney of Huffman filed a motion to set aside and quash the order of delivery and the service thereof. This motion was filed after the
The plaintiff in error is here complaining of all these rulings, and as to all but one we cannot review them, as no final 'disposition of the case has been made. The orders of the court for leave to plead and file motions and to amend we cannot now consider. - The one most bitterly complained of is that of quashing and setting aside the first order of delivery, and as that is a final order that discharges a provisional remedy, we can review it. The motion directed against it enumerated the reasons why it should be set aside. The first is, “that it was prematurely issued, without the plaintiff filing a prceoipe therefor with the clerk of the court.” The code does not require that a prceoipe shall be filed, but it is made the imperative duty of the clerk to issue an order of delivery whenever a certain proper affidavit is filed therefor, and a sufficient undertaking entered into with the approved sureties. (Civil Code, §§176, 177.) It might be that the clerk; to protect himself, when he has doubts either as to the sufficiency of the affidavit or the legal form of the undertaking, can demand a prceoipe, but after he issues the writ without such a demand it is too late to question the regularity of the proceeding. The second cause assigned is, “because the officer to whom the same was directed had no jurisdiction to execute the same, the writ showing on its face that the property was outside of his county; ” and the third, that may be considered in connection with the
The writ was directed to the coroner of Hamilton county, an affidavit being filed that the sheriff was interested, being the defendant in the action. It described the property as being situate at Lakin, in Kearny county, Kansas, and the averment of the petition is that Kearny county, being unorganized, is attached to Hamilton county for judicial purposes. The district court of Hamilton county must take judicial notice of the attachment of Kearny to Hamilton county for judicial purposes, as we do, and hence none of the objections urged against the order of delivery were good, and did not authorize the court to set it aside. Besides, the defendant had answered, and it was too late to move against the order of delivery. To withdraw his answer, then interpose his motion to vacate the writ, and then ask and obtain leave to renew his answer as soon as the motion was disposed of, looks like trifling with the orderly course of judicial proceedings; and all this defendant in error did, and was permitted to do. This suit was commenced on the 25th of January, 1888. The answer of defendant was filed on the 24th day of February, 1888. On the 8th day of August, 1888, the defendant in error filed his motion to vacate the order of delivery. On the 15th day of August, 1888, he asked leave of the court to withdraw his answer and file his motion to vacate, and this was granted; and on the same day the motion to vacate was sustained, against the objections of the plaintiff in error, who then and there had her exceptions noted. On the 27th day of August, 1888, by permission of the court, the defendant in error filed what he calls an amended answer, being in legal effect the same as his original answer. It will be seen from this statement that the withdrawal of the original answer was a mere pretext to attempt to avoid the decision of this court in the case of Kennedy v. Beck, 15 Kas. 555, wherein the court holds that in an action of replevin it is too late to raise any question about the irregularity of the issue'of an order of delivery on behalf of the defendant after he has filed his answer.
We recommend that the order of the trial court vacating the original order of delivery be reversed, with instructions to overrule the motion, and for further proceedings.
By the Court: It is so ordered.