7 Kan. App. 352 | Kan. Ct. App. | 1898
The opinion of the court was delivered by
This action in replevin was commenced by John Peter Knoll to recover the possession of certain wheat and grain in stack on the farm of Adam Knoll, the father of John Peter. Thereafter, before answer day, Alexander Phillip and Tena Knoche, as mortgagees of John Peter Knoll, were made parties, and the plaintiff's filed an amended petition alleging that John Peter Knoll was the owner of the property and entitled to the immediate possession thereof ; that the defendant T. K. Hamilton, as sheriff, unlawfully seized and unlawfully detains the possession of the property from John Peter Knoll; that Tena Knoche and Alexander Phillip have a special ownership in the property; that Tena Knoche has a mortgage upon the property, which is set out verbatim ; that Alexander Phillip has a mortgage upon the property, and his mortgage is likewise set out; and that-the ownership of the plaintiffs and their right to the possession of the property is inseparably connected. The case was subsequently dismissed as to Alexander Phillip, and the action proceeded in the names of John Peter Knoll and Tena Knoche as plaintiffs.
The defendant Hamilton, as sheriff, filed a demurrer to the petition, upon the following grounds : (1) A misjoinder of parties plaintiff;. (2) a misjoinder of causes of action; and, (3) that the petition did not
To the second and third defenses the plaintiffs demurred, (1) for the reason that neither of them stated facts sufficient to constitute a defense; (2) that the second and third grounds of defense in the answer did not state facts sufficient to entitle the defendant
Thereupon the plaintiffs filed a reply, in which they alleged (1) the commencement of the action upon the note in the justice’s court referred to in their demurrer ; (2) a general denial. To this reply the defendant bank demurred that the first count of the reply did not state facts sufficient to constitute a defense to the matters set up in the answer. This demurrer was overruled, the defendant excepting. The plaintiffs then dismissed this action as to a part of the property described in their petition. The case came on to be tried at the February term, 1896, and the defendant demanded a separate trial as to each of the plaintiffs, John Peter Knoll and Tena Knoche, which was denied by the court. The case was tried to a jury, and the verdict and special findings were for the plaintiffs, upon which judgment was rendered in the alternative for a return of the property, or its value in case return could not be had. It appeared that the defendant Hamilton, as sheriff, had retained the property, and sold the same under his writ at the suit of the plaintiff in error. There are seventeen assignments of error. So far as necessary we shall notice them in their order.
The first assignment of error is based upon the overruling of the demurrer of the defendant Hamilton tO' the plaintiffs’ amended petition. The first ground of demurrer is not within the statute. The statute provides for a demurrer in case of a defect of parties,.
“ Klass having the general property in the logs, and Geekie a special property in them, and the logs having been taken by the defendant from the possession of Geekie, who held them as sheriff, under the attachment against Klass, it was proper for both to join in the suit. The damages found to have been sustained by each may be added together and awarded to them as plaintiffs. The damages to Klass are the value of the logs. . . . The damages to Geekie are the expenses.”
“All persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs, except as provided otherwise in this article.”
The owner of the property and his mortgagees have an interest in the mortgaged property. They have a community of interest as against a trespasser, and they have an interest in this case in obtaining the relief demanded ; that is, a return of the possession of the property to the rightful owner, that their mortgage interests might be protected thereby against an adverse claimant. If the property could not be recovered in specie under the alternative money judgment, the respective interests of the mortgágor and mortgagee could be protected by the court. The provisions of the code are entitled to a liberal construction in protecting the rights of litigants. The plaintiff in error would be in no manner prejudiced by the fact that the mortgagees were parties plaintiff in the suit. Their presence could not deprive it of any defense or of any right, or impose upon it any additional burden. The demurrer was properly overruled. This ruling does not in any manner conflict with the cases decided by the supreme court cited by counsel in their brief. Upon this same contention counsel rest their right to a separate trial as against each of the plaintiffs. There was but one issue to try : Who had the right
The third assignment of error is that the judgment should have been for the defendant bank upon the pleadings. It is baséd upon the same theory, and must fall with the first contention, unless it may be said that the plaintiff in error, by the acquisition of the Phillip note and mortgage after the commencement of 'the -suit, could justify the seizure of the property. The Phillip mortgage was purchased and assigned long after the taking and detention of the property by the sheriff, long after this action -was begun. The plaintiff in error was substituted for the sheriff, and the bank could urge any defense which might be rightfully urged by the sheriff. By the terms of the mortgage John Peter Knoll was entitled to the possession of the property, and nothing appeared in the facts of the case to controvert this right. The answer does not allege any default on the part of the mortgagor, by reason of which the mortgagee or his assignee would be entitled to take the property under the mortgage.
The fourth assignment of error is that the demurrer to the evidence should have been sustained for the reason that the Alexander Phillip mortgage, which had been assigned by him to the bank, did not contain any provision for John Peter Knoll retaining possession of the property, and that the bank, as the assignee of the mortgage, had the sole right 'to the property. . As we have heretofore said, this mortgage to Alexander Phillip by John Peter Knoll clearly expressed by its provisions that John Peter Knoll should retain possession until the happening of some contingency therein expressed. There was no allegation nor was there any evidence offered to show that either
The fifth assignment of error is based upon the fact that the court permitted Harry Knoche, the husband of Tena Knoche, to remain with her in the courtroom during the trial, notwithstanding he was a witness in her behalf or in behalf of John Peter Knoll. In the exclusion of witnesses from the court-room during the progress of the trial the court had a discretion, and it cannot be said that it abused its discretion in this instance.
The sixth assignment of error is that the court refused the request of the plaintiff in error to instruct the jury that the assignment of the note by Alexander Phillip to the bank carried with it the mortgage. This is a sound proposition of law. The evidence of the debt carries'with it the security. But it had no application to the facts in this case, and was an immaterial matter.
The seventh assignment of error is that the court refused to give as law the eighth request of the plaintiff in error. It appears that at t'he sale of the property in controversy by the sheriff under his writ of execution against Adam Knoll, Michael Knoll, a son of Adam and a brother of John Peter, attended the sale and bid in a part of the property — several stacks of wheat. He had the wheat thrashed and subsequently sold a part of it to his brother, John Peter, for seed to sow the land. By the eighth request re-
The eighth assignment of error is based upon the court's refusal to instruct the jury :
“If you believe from the evidence that Adam Knoll-transferred to John Peter Knoll the use of all his land, in consideration of $100 a year and future support of Adam Knoll and wife, and, at the time of making such transfer and agreement, Adam Knoll and John Peter. Knoll knew that Adam Knoll was largely indebted to the First National Bank of Russell, and that Adam' Knoll had no other property out of which the same could be paid, then such transfer or lease is void as to the defendant bank."
Adam Knoll owned the land upon which this wheat was grown. It comprised 300 acres, which included the homestead of himself, his wife, and his family. And even if it were a sound legal proposition when applied to land not a homestead, it could have no application here, as the homestead is here included ; and a homestead is something to which a creditor may never turn for the satisfaction of his debt. The instruction as requested was properly refused.
The ninth assignment of error is that the court sustained an objection to a question propounded by the plaintiff in error to Michal Knoll as to how many stacks he, Michael Knoll, had upon a certain section. The inquiry was immaterial and the objection was properly sustained. It mattered not how many stacks of wheat Michael Knoll had op. any section.
The twelfth assignment of error is that the court overruled an objection of the plaintiff in error to the' testimony of John Schlyer as to the custom of Russians in giving their children property when they left home. The record discloses the fact that both parties entered into this controversy. Both parties introduced evidence pro and con as to what the custom of Russians was and is in dealing with their children when they arrive at majority. The plaintiff in error is in no condition to urge this objection. The whole scope of this inquiry was immaterial, and could not affect the rights of either party.
The thirteenth assignment of error is based upon the court’s action in sustaining an objection to a question upon cross-examination of Adam Knoll. We are not referred to the page of the record, or in what connection this question was asked. We do not find it in the record. We cannot say, from what is set out, that the court abused its discretion in limiting this cross-examination.
. The fifteenth assignment of error is based upon the action of the court in sustaining an objection to a question asked by the plaintiff in error of John Peter Knoll. There is no reference to the record in this connection, and we are not able to say that the action of the court was erroneous or prejudicial to the rights of the plaintiff in error.
The sixteenth assignment of error is as follows : “An eirroneous conclusion of the jury in the sixteenth finding-of fact, as follows.” Then is recited an interrogatory submitted, to the jury by the court, and the answer thereto. The interrogatory should not have been submitted to the jury. It was immaterial. It referred to a transaction independent of the question of the ownership of the wheat. It referred to a transfer of property from Adam Knoll to John Peter Knoll, other than the property involved in the litigation. It is not necessary for us to examine or determine, therefore, whether the jury reached an erroneous conclusion or not.
The seventeenth assignment of error is that the verdict is contrary to the evidence. The evidence is very satisfactory and convincing that the wheat sought to be recovered by John Peter Knoll and his mortgagee was honestly his property — was a crop raised by him. There was nothing in connection with the transactions between father and son in any manner affecting the title to the property in litigation, of which the plaintiff in error had any right to complain.
Whether other transactions between the father and son were legitimate, is immaterial in the determination of this controversy. The title or right of posses
The evidence sustained the verdict of the jury, and the judgment is affirmed.