88 P. 263 | Kan. | 1906
The opinion of the court was delivered by
It is very difficult to follow the argument of plaintiff in error, for the reason that in the first sixteen pages of its brief it gives a résumé of the facts which it claims the evidence establishes, without a reference to a page of the record where the supposed evidence may be found, and in its argument refers, not to the record, but to its own statement of facts. Some of the eight assignments of error, however, have been argued with appropriate references to the record, and we allow this to save the case from dismissal for a violation of rule 10.
We think the evidence copied in the brief of plaintiff in error is sufficient to justify the court in overruling its demurrer to the evidence of plaintiff below and in refusing the peremptory instruction asked by it.
It is urged that the court erred in instructing the jury that if they found certain facts they might allow the plaintiff exemplary, or punitive, damages. The petition does not very fully state the facts relied upon for
Again, it is said the court erred in excluding as evidence the record of the judgment and writ of execution in the case of Duff & Repp Furniture Company against Mrs. David J. Read. We cannot so believe. The judgment was void on its face for want of jurisdiction. The record affirmatively showed that the summons in replevin was not served, and failed to show any appearance on the part of the defendant therein. (Bradley v. Harwi, 2 Kan. App. 272, 42 Pac. 411.) The mere recital in the record of the justice that the action was continued by consent, without a recital showing by whom' the consent was given, and with no showing of any appearance by the defendant, is not a sufficient showing of jurisdiction. A justice’s court in this state is not a court of general jurisdiction, and no presumption of jurisdiction prevails in its favor. (17 A. & E. Encycl. of L. 1084.) On the other hand the evidence aliunde tended to prove that there was no appearance by the defendant, and, as the record affirmatively showed that no summons had been served upon the defendant, it follows that the court had no jurisdiction oyer her, and its judgment and process therein were void. The record offered in evidence further affirmatively showed that the court had obtained no jurisdiction over the property and had no jurisdiction to adjudge the possession thereof. The property claimed had not been taken, and the court could, at most, only render a money judgment for damages. (Gen. Stat. 1901, § 5298.) Moreover, if the judgment and record had been valid as against Mrs. Read, they were of no force as against her husband, and could in no way justify an entrance into his house by force and the seizing and deporting of his personal property and the terrorizing of his daughter
It is urged that, as the writ of execution was regular on its face, and as there was no evidence that the company by any of its officers was present or had directed the constable to do any of the acts complained of, the company is not liable therefor. The test is whether the wrongs complained of were committed within the scope and .as a very part of the acts which his duty in serving the writ required the constable to perform. (Mirick v. Suchy, ante, p. 715.) The defendant is presumed to have known all the facts. It had procured a void judgment for the possession of the mortgaged property, after the debt had been fully paid, against one not the mortgagor and not in the possession of the property, and without any service of summons or appearance. It had caused execution to be issued on such judgment, and had presumably directed the seizure of the property of another, the mortgagor, as it sent its own employees and conveyance to take the stove away. It had sold the stove to the mortgagor, had placed it in his possession, and, after the commencement of the action against his wife, had full knowledge that it remained in his possession in his house, and had no reason to suppose the possession had changed. It knew the writ of execution was worthless and void, and on its face was not against David J. Read or his property; yet, with all this knowledge it placed this writ in the hands of the constable for the only conceivable purpose of inducing the constable, under this color of authority, to enter the home of David J. Read and seize and remove his cook-stove.
Where a levy is made by an officer under a process which is irregular, unauthorized or void, the party suing out the process is a trespasser, and in such a case the officer becomes the agent of such party. (3 A. & E. Encycl. of L. 246; McLaughlin v. Davis, 14 Kan. 168; Connelly v. Woods, 31 Kan. 359, 2 Pac. 773.)
As to the instruction of the court with reference to the amount of the purchase-price of the stove which remained unpaid, if any, it is sufficient to say that it was based upon the evidence introduced by the defendant, and the latter has therefore no ground for complaint thereof. The jury by their verdict found the purchase-price was fully paid. The amount of the judgment for damages seems large, but the circumstances indicate the most wanton, if not malicious, oppression on the part of the defendant, and that the original plaintiff and his family were thereby terrorized and subjected to great humiliation and disgrace among their neighbors.
We cannot say that the amount of damages allowed in the verdict is so large as to afford a presumption of prejudice of the jury, or of error on the part of the court in denying the motion for a new trial. The judgment is affirmed.