35 Kan. 123 | Kan. | 1886
The opinion of the court was delivered by
On November 24,1884, the plaintiff brought suit against the defendants upon a promissory note executed by them for $1,050. At the same time, he filed an affidavit upon which an order of attachment was obtained, which was levied upon a valuable herd of cattle belonging to the defendants. On December 5, 1884, the defendants in an affidavit denied the grounds laid for attachment, and moved to discharge the same. A hearing was had before the judge of the district court at chambers, whereat both written and oral testimony was offered, which resulted in an order discharging the property. The plaintiff excepted, and brought this proceeding to review that order.
It has been made to appear here on a motion to dismiss this proceeding, that since the petition in error was filed in this court, the sheriff who had the custody of the attached property, at the instance of the plaintiff, proposed to John &. Goodwin to release the cattle from the attachment and deliver them to Goodwin, provided he would release a claim which he held for feed furnished for the cattle while they were in the possession of the sheriff. This proposition was accepted^ and the sheriff states that on March 31, 1885, he released the cattle, and unconditionally delivered them to the defendant John S. Goodwin. Goodwin immediately took possession of the cattle, and has ever since managed and controlled the same as his own, and has advertised for sale and sold the greater number of them without objection from the sheriff or the plaintiff.
The motion to dismiss will therefore be allowed.