15 Kan. 255 | Kan. | 1875
•The opinion of the court was delivered by
The facts of this case are briefly as follows: Henry Churchill, who was the owner of a certain judgment rendered in a justice’s court in favor of himself and against Gordon & J ones, caused an execution to be issued thereon and placed in the hands of W. W. Moore, a constable, for service. Moore by virtue of said execution levied upon a horse believed to belong to Gordon, but in fact belonging to Mrs. Mauritzius. Mrs. Mauritzius immediately replevied said horse. Moore then gave a redelivery bond, retained the horse, and afterward sold him on execution to Chui’chill for the amount of Churchill’s judgment and costs. Churchill acknowledged satisfaction of the execution, and the execution was returned satisfied. All this was done in accordance with the instructions of Churchill, and of Churchill’s attorney. Moore, at the instance of Churchill, defended said replevin action, Churchill himself employing the counsel, and through, his counsel directing the management of the action. Judgment was finally rendered in the replevin action in favor of Mrs. Mauritzius and against Moore for a return of the horse, or in case a return could not be had for $100, the value of the horse, and for costs taxed, as Moore alleges, at $141.55. Further costs to the amount of $11, as Moore alleges, afterward accrued, making a total, as Moore claims, of $252.55. The jury however in this case rendered a judgment in favor of Moore and against Churchill for $250.48, which sum we must presume was the correct amount. No portion of the judgment in favor of Mrs. Mauritzius and against Moore
“Whereupon the court suggested that execution in this case be stayed until the judgment in the case of Mauritzius v. Moore was [shall be] satisfied; whereupon it was shown that said judgment had been paid after the verdict in this case was rendered; whereupon the court rendered judgment in favor of plaintiff and against defendant upon the verdict, and that execution be issued.”
This is all there is in the record tending to show that Mrs. Mauritzius’ claim or any part thereof has ever been satisfied'. Churchill is the plaintiff in error in this court, and seeks to reverse the judgment of the court below. Now, when Moore and Churchill took said horse from Mrs. Mauritzius they were both trespassers, and Mrs. Mauritzius could have sued either of them, and recovered the value of the horse. And if they had been ordinary trespassers, the one against whom she recovered would have had no action against the other for contribution. But in cases of this kind where one of the trespassers is an officer, and the property is taken under legal process for the benefit of the other trespasser, who is not an officer, the officer may have an action against the other for his loss actually sustained. Mere liability however on the part of the officer, is not sufficient to enable him to maintain the action. He must actually have lost something, and he can recover only to the extent of his actual loss. Both parties become liable to the party injured as soon as they commit the trespass, and that liability continues as against both until the party injured is entirely satisfied.for his or her loss. When Moore and Churchill took said horse from Mrs. Mauritzius (supposing Churchill participated,) both become liable to Mrs. Mauritzius, and both continued to be liable to her until her claim
The judgment of the court below is reversed, and cause remanded for a new trial.