6 Kan. App. 563 | Kan. Ct. App. | 1897
“And inasmuch as the above and foregoing matters and things do not appear of record herein, the said plaintiff presents this as a true case-made herein, showing and containing the pleadings upon which said action was tried, the evidence given and offered upon the trial thereof, and the record and proceedings of said court, as also the motion for a new trial with the ruling thereon,.and asks that the same may be settled, signed and allowed as a true case-made in said action.”
This is followed by an acknowledgment of service of the case-made, signed by the defendant’s attorneys, after which is the certificate of the trial judge showing the case-made to have been duly presented, allowed, and settled.
Preceding the introduction of the evidence of plain
In Dewey v. Linscott (20 Kan. 686), the Supreme Court, by Mr. Justice Brewer, said :
“ It is not stated in express words [in the record] that all the testimony is preserved; but as said in Moody v. Arthur (16 Kan. 425), that is not always necessary. If the case-made is so prepared that it is clear that all the testimony is in it, that is sufficient. . . . Anything which makes it apparent that the whole case is here is sufficient.”
The case of Newby v. Myers ( 44 Kan. 477), is cited in support of counsel’s claim that the certificate of counsel for plaintiff in error, quoted above as to contents of the case-made, is insufficient, and that such certificate is no part of a case-made. In the case at bar,
“ Now the foregoing notice and certificate are not sufficient to show that the ‘ case-made ’ contains all the evidence. The ‘ case-made ’ should itself show it, or at least it should be shown by something which has received the approval of the judge as to its correctness.”
As the statement by counsel in the present instance precedes the judge’s certificate, it seems to be “ something which has received the approval of the j udge as to its correctness.”
“ This action is now brought by Betty Donnell, the wife of Solomon Donnell, to recover of the Sheriff and one of his bondsmen the value of that property, upon a claim by her that she, at the time of this levy and sale, and not her husband, was the owner of it; and the question of ownership is the main question in the case.”
The seventh instruction is as follows :
“7. If the plaintiff, Betty Donnell, owned this property so seized and sold by the Sheriff, and was present when he levied upon it, or when he sold it,*569 and failed in any manner to call his attention to the fact that she was the owner of it, and did not, when the levy was made, or at any other time prior to the sale, give notice to the Sheriff that she was the owner of it, then her mouth is now closed from setting up a claim that she did own it; but, of course, there is no particular form in which such notification may have been given, by her to the Sheriff. She could have done it in any way, or by any means of communication, so long as she did in some way or form communicate to him that she was the owner of the property or claimed to be the owner of it; and this claim of title to the property may have been made for the plaintiff by an agent or attorney, or both, and if by agent, the husband of the plaintiff was competent to act in that capacity. ” '
The principal contention in this case is that the first sentence of instruction number seven is unwarranted and erroneous. Counsel for plaintiff in error seems to regard this as an instruction that a demand before the sale by Mrs. Donnell should have been made and proven before she could recover the property; while counsel for defendant in error regards this as an instruction concerning an estoppel on the part of Mrs. Donnell, and thereby concedes that no proof of a demand prior to the sale was necessary. There can be no controversy on this question of demand.
“Itis claimed that such conduct on the part of the-defendant herein estops him from subsequently claiming the horse as his own. Did such conduct on the part of the defendant amount to an estoppel? When an officer wrongfully seizes the property of one person upon process against another, is the latter required to make any claim of property before commencing proceedings in recovery?- May he not, with full knowledge of each step taken in the proceedings' under which his property is seized, remain silent until the last act therein is closed, and then commence proceedings for its recovery, or the recovery of its value? Whatever the rule may be in an action by the owner against an innocent purchaser of property, which the former has seen the latter purchase at judicial sale and pay for, without any notice of claim to the property by the former, we do not think that, in an action by the owner against an officer -who has wrongfully seized and sold his property, the "silence of the former, although aware of the seizure and sale when made, will operate as an estoppel to his recovery. The seizure being wrongful, the silence of the owner forfeited none of his rights, nor did it cure the wrong' of the officer. In McKinney v. Purcell (28 Kan. 452), the court said: ‘ The original seizure was wrong. Defendant did not assent to it. 'Her silence during the continuance of the attachment, and her failure to object to any of the proceedings of the plaintiffs, give them no greater rights than they had in the first instance, and she waived none of her rights.’ ”
From the foregoing, it appears clear that the trial court erred in giving instruction number seven. We are not able to say, from a reading of the record, that the jury might not have decided the case in favor of plaintiff in error upon the issue of ownership of the property. But with this instruction to guide them, they were required to also find that she informed the Sheriff of her claim of ownership.
The judgment of the District Court is reversed, and the cause remanded for a new trial.