36 Kan. 278 | Kan. | 1887
The opinion of the court was delivered by
This was an action brought by G. W. Neal and N. Matthews against E. S. Crisfield, to recover $525 and interest. The case was tried before the court without a jury, and the court rendered judgment in favor of the plaintiffs and against the defendant for $548.90 and costs. The defendant brings the case to this court for review.
It appears that ou September 22, 1882, Henry Barrows, of Marion county, Kansas, owned 180 head of Merino and Cotswold sheep. On that day he mortgaged, or attempted to mortgage them to the plaintiffs, G. W. Neal and N. Matthews. This mortgage was executed to the plaintiffs to secure them from liability as sureties and indorsers on a certain promissory note executed by Barrows to Geo. H. Bush. On Eebruary 14, 1883, the defendant, E. S. Crisfield, as constable, levied
It is claimed on the part of the defendant below that the mortgage was and is void, because of an insufficient description of the mortgaged property; and further, it is claimed that the mortgaged property was never delivered to the mortgagees, which is true, and that the mortgage was not filed in the register’s office until aiter the defendant had made a valid levy of an execution upon the property. On the other side, it is claimed that the mortgage is valid and sufficient in every respect; that no levy was in fact made prior to February 16, 1883, when the mortgage was filed in the register’s office, except the supposed levy of February 14, 1883, and that such supposed levy was and is in fact invalid, and no levy at all. These are really the only questions of any importance involved in the case.
The next question to be considered is, whether the levy made by the defendant as constable on February 14, 1883, is sufficient. Upon this question the evidence is conflicting; but as the decision of the court below was in favor of the plaintiffs and against the defendant, we must assume that the court below found the facts as the plaintiffs’ evidence tended to prove them; and with this assumption, stating the facts as liberally for the defendant as they can be stated, they are substantially as follows: The defendant, as constable, with the execution in his pocket, got on his horse, rode to Barrows’s farm and to his corral where the sheep were kept, and in the presence of Barrows and in sight of the sheep, or of a portion of them, and while still on his horse’s back, took the execution from his pocket, placed it on the pommel of his saddle, and wrote on it the following words:
“February 14, 1883, levied on the goods and chattels of the within-named Henry Barrows, 180 sheep, on section 18, Peabody township, Marion county, described in the annexed schedule.”
He did not state to Barrows that he levied upon the sheep, or that he intended to do so. His language to Barrows indicated that he did not intend to make any levy at that time; and Barrows did not know that he levied upon the sheep, or
“It is not a sufficient levy of an execution on personal property for the officer to indorse an inventory of the property on the execution in the presence of the judgment debtor, but the officer must perform some act which not only indicates an intention to seize the property, but he must reduce it to possession, or at least bring it within his immediate control. A mere ‘pen-and-ink’ levy will not be sufficient. He must do some act which, if not protected by his writ, would make him a trespasser.”
The plaintiff in error claims that there was no finding made by the court below, and therefore that the judgment rendered by the court is erroneous. Now it appears from the record that after all the evidence was introduced and the argument of counsel made, the same were “ considered by the court,” and it was then “by the court ordered and adjudged that plaintiffs have and recover of the defendant the sum of $548.90,” etc. It does not appear that the court was asked to make any further or additional findings, or indeed any findings in the case. And it does not appear that any objection was made or exception taken to this mode of making the findings or rendering the j udgment. It appears that the defendant moved for a new trial upon the following grounds:
“ 1. The decision and verdict are not sustained by sufficient evidence, and are contrary to law.
“2. Errors of law occurring upon the trial, and which errors were excepted to by the defendant at the time.”
This motion was overruled, and then the following entry was made, to wit:
“To which overruling the defendant then and there objected and excepted, as well as to the rendition of said judgment.”
We think this disposes of this case. It is not necessary to comment upon any of the other points presented by counsel for plaintiff in error. They are overruled.
The judgment of the court below will be affirmed.