4 Kan. App. 26 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
This action was originally brought by the plaintiffs in error against Robert Eaves, as sole defendant, to recover the value of certain personal property and damages for its detention. They alleged ownership and right of possession of one black horse, a wagon, and set of harness, under and by virtue of a chattel mortgage given by one Diehl to Henry Hursh, dated March 12, 1889, and filed in the office of the register of deeds of Shawnee county on April 11 thereafter-, to secure the payment of a note for $265, bearing interest at the rate of 10 per cent, per annum from date, which had been transferred to the plaintiffs by a-written assignment thereon, and which note bore indorsements of payments amounting
From the foregoing statement, it appears that under the original petition the plaintiffs sought to recover from Eaves $175, for the conversion by him of two horses, a wagon, and a set of harness, and the damages resulting therefrom. Under the original amendment, it'was sought to recover from Eaves and Spear $150, the amount due on the Diehl note and mortgage, because of the alleged detention by Spear of the black horse. Under the second amendment, a judgment for $250 was' sought to be recovered against Spear alone, because of an alleged conspiracy between him and Eaves to keep the plaintiffs from recovering the possession of the property described in the petition, and the subsequent acts of Eaves in. secreting the black horse; while, by the third amendment, which was made at the trial "to conform to the proofs,” a' judgment was sought, presumably-against both defendants, for the return of all the .property described in the petition or the value thereof, which was claimed to be $250, and for damages based upon the usable value of the property. We think the allegations of the last amendment are controlling as to the nature of the cause of action upon which the plaintiff relied for a recovery, and that these allegations, when considered in connection with the prayer for judgment, stated an action of replevin, and this was the construction placed thereon by the trial court, which found in favor of the plaintiffs, as against the defendant Eaves, for the return of the property described in the petition, or the value thereof, which was found to be $100, and judgment was entered in accordance therewith. The findings and judgment were in favor of the defendant Spear, for his costs. A motion for
An elaborate brief has been filed, in which counsel has reviewed the evidence, attempting to show that the court erred in its findings of fact. But the record shows conclusively that these findings were based upon conflicting evidence. Spear held a bill of sale of the property described in the petition, dated June 11, 1889,' which was executed by the then owner, Henry Hursh, and was intended by the parties thereto to operate only as a security for the payment to Spear of the sup of $15, then due him. This bill of sale was filed in the office of the register of deeds two days after its execution. The lien created by it would; of course, be subject to that of the prior mortgage set up in the petition. The property was afterward removed to Butler county, where it remained until December 14, 1889, which was two days subsequent to the date that Hursh executed the bill of sale to Perry'& Go. At the time of the execution of this bill of sale the plaintiffs had not seen the property, but Hursh agreed it should be delivered to them within three days from that date. One Gillespie, who brought the property from Butler county under the directions of a man by
“this bill of sale is given subject to the chattel mortgage of $40 in Cook’s hand for collection, also a first mortgage given to Diehl for $265, of which there is unpaid $60; this bill of sale to be void in case the said Henry Hursh shall pay back to E. H. Perry & Co. $85 and all costs, with interest at 10 per cent, from date, on or before January 1, 1890.”
From these recitals, it would appear that the plaintiffs purchased the property subject to the liens of two mortgages to secure the payment of $100, being a balance of $60 due under the Diehl mortgage, which had been assigned to the plaintiffs prior to the commencement of this action, and of $40 under another mortgage which was held by CoOk for collection. There is nothing in the record aside from the recitals of the Perry & Co. bill of sale to indicate in whose favor the mortgage for $40 was given, nor of the existence of such an instrument, save that Spear’s bill of sale was intended to operate as a chattel mortgage for the payment of $45, and that a payment of $5 had been indorsed thereon. When the property was brought from Butler county it was driven in front of the office of the plaintiffs in error, and Gillespie then claimed a lien thereon for his services, which Perry & Co. declined to pay. Acting upon the advice of an attorney, Gillespie directed Cook, who was a constable, to sell the property for the payment of the alleged lien of $22.50. It brought at sale somewhere in the neighborhood of $130. The defendant Eaves was the purchaser ; he paid Spear $40, and took an assignment of his bill of sale, and one witness testified that Eaves then tendered to Perry & Co. $60-, in satisfaction of the
Taken as a whole, we think the plaintiffs in error have no just cause for complaint as to the rulings of the court, and that the finding in favor of Spear is supported by the evidence. While the plaintiffs were entitled' to recover damages from Eaves for the unlawful detention of the property, the error of the court in failing to allow a recovery therefor must be deemed to have been waived, as a motion for a new trial did not call the attention of the court thereto. One of the specific grounds enumerated in the statute upon which a new trial may be granted is “error in the as
It follows from what has been said that the judgment must be affirmed.