Garrett v. Wood

3 Kan. 231 | Kan. | 1865

By the Oourt,

Croxier, O. J.

The petition alleges that one Simeon P. Yocum brought a suit before a justice of the peace of Leavenworth county against one Cyrus M. Adams, for the recovery of the possession of a horse; that the constable to whom the writ was directed took the horse and delivered him to Yocum upon the execution of a bond by Yocum with the plaintiff in error as his surety, in the sum of two hundred dollars; that the property was appraised at less than one hundred dollars; that a jury which had been impanneled to try the cause, rendered a verdict as follows: “We the jury, find for the defendant, and also that he had the right of property in the horse in controversy at the commencement of this suit. Ye also find the value of the property to be ninety-five dollars and twenty dollars damages.” That the “justice of the peace thereupon rendered judgment against said Yocum for the sum of ninety-five dollars, the value of said property or the return thereof, and also twenty dollars damages, and for the costs of said suit taxed at fifteen dollars;” that Yocum resides in Missouri and Garrett in Leavenworth; that an execution was issued on the judgment and returned “ no property ”; that the horse was not returned, and that the judgment had been assigned to the defendant in error, and prays judgment against Garrett and Yocum for one hundred and thirty dollars and interest and costs.

To this petition a demurrer was interposed assigning as causes all the statutory grounds, which was overruled and judgment given for "Wood in the sum of one hundred and thirty-six dollars and costs.

This proceeding was instituted to procure a reversal of that judgment.

The plaintiff claims that the judgment of the justice was for one hundred and fifteen dollars, and was void for want of jurisdiction in that officer to render judgment for an amount exceeding one hundred dollars.

The sections of the Justice’s Act applicable to the case, are the following:

“ Sec. 131. The plaintiff’ may recover the possession of specific personal property of less value than one hundred dollars before a justice of the peace, as hei’ein provided.”

“ Sec. 140. In all cases where the property has been delivered to the plaintiff where the jury shall find for the defendant, they shall also find whether the defendant had the right of property or the right of possesion only at the commencement of the suit, and if they find either in his favor they shall also find the value of the property or the value of the possession, and such damages for withholding said property as may be just and proper.”

“ Sec. 141. The judgment in the cases mentioned in the two preceding sections, shall be tor the return of the property or the value thereof, or the value of the possession of the same in case a return cannot be had, and the costs of the suit.”

It will be observed that the justice may try an action in replevin only when the property is of less value than one hundred dollars. If in any stage of the proceeding it shall be ascertained that tbe value amounts to that sum, his jurisdiction is ousted. Any further proceeding after that shall appear, will be coram, non judice. Although the property may have been appraised at less than one hundred dollars, yet the test is the value of the property as ascertained upon the trial. The appraisement is merely for the purpose of fixing the amount of the undertaking.

If the property has been delivered to the plaintiff and the jury find the value of the property to be less than one hundred dollars and damages for withholding it in a sum less than that amount, such judgment as is required by section 111, is to be rendered. That section does not authorize a judgment for the value and the damages. If the defendant gets the. value of the property he is not entitled to damages for the detention. This would he compensating him twice for the same injury. If the property cannot be returned the proceeding is assimilated to an action of trover in the- old form, the measure of damages being the value at the time of the conversion. If the property can be returned then he will be entitled to damages for the detention. Otherwise not, and the judgment may be in the alternative. Before rendering judgment the justice is not required to ascertain whether the property can be returned. It might very well be that at the time of the rendition of the judgment the property could be returned, but by the time the writ was in the officer’s hands it might be beyond his reach; in which case the party would be without remedy. The form of the judgment should be that he have return of the property and the damages found by the jury for its detention if return can be had, and if return cannot be had, then for the value and costs in either case. And the final process issued upon the judgment should direct the officer to return the property and make the damages ; and in case he shall not be able to find the property then he shall make the amount of the value as found.

The judgment of the justice in the case at bar is not set out in tbe petition in haeo verba. The language of the allegation is that the justice rendered judgment “for the sum of ninety-five dollars the value of said property or the return thereof, and also twenty dollars damages, and for costs,” &c. Now this if it is properly described, is not a judgment for one hundred and fifteen dollars, but a judgment for ninety-five dollars or a return of the property, and twenty dollars damages. It may not have been very formally written out, but it is substantially in the form required by the statute. Some allowance must be made for informalities in the records of these officers. They are chosen from the body of the people with reference to probity and good sense rather than legal learning, and are not presumed to be expert iu forms and technicalities. Their acts, however informal, if substantially in accordance with law, are to be upheld. When it can be ascertained from their dockets that they have in substance carried out the requirements of the law, a mere technical defect or informality should not be held sufficient to vitiate the proceeding.

The judgment in this case being substantially in accordance with the law, is not void.

It will be recollected, however, that this case comes up on demurrer, and that the allegations of the petition as to what the judgment was, and not the judgment itself, has been considered. If it should turn out upon presentation of the record itself that the judgment was for the value and the damages, they together exceeding one hundred dollars, it will be void.

The judgment of the District Court overruling the demurrer, will be affirmed.

All the justices concurring.