24 Kan. 291 | Kan. | 1880
The opinion of the court was delivered by
This was an action on the official bond of George W. Graves, constable. The facts are substantially as follows: Graves, having an execution in his hands, which had previously been issued on a judgment in favor of W. L. Challiss and against Thomas Butcher, levied such execution on certain property as the property of said Thomas Butcher, and was. about to sell the same, when George W. Butcher (defendant in error, plaintiff below) claimed the same, and gave notice to Challiss for a trial of the right of property, under chapter 164 of the laws of 1872. (Comp. Laws of 1879, pp.725, 726.) Said trial of the right of property was had, and judgment was rendered in favor of Butcher and against Challiss. Challiss then gave the constable an indemnity bond, and the constable then refused to deliver the property to said George W. Butcher, but sold it as the property of said Thomas Butcher. George W. Butcher then commenced this
We think said judgment is not conclusive. In the case of Sponenbarger v. Lemert, 23 Kas. 63, it is said: “Such judgments are generally not conclusive. (Freeman on Executions, §§276, 277; Armstrong v. Harvey, 11 Ohio St. 527, 533; B’Hymer v. Sargent, 11 Ohio St. 682; Foltz v. Stevens, 54 Ill. 181, 185, 186; Curtis v. Patterson, 8 Cowen, 65; Van Cleef v. Fleet, 15 Johns. 147; Sheldon v. Loomis, 28 Cal. 122.) This kind of suit is a summary proceeding before a justice of the peace, for the trial of the right to property which may amount in value to several hundreds, or even thousands of dollars, and neither the judgment debtor (the supposed owner of the property) nor the constable who has seized it, is made a party to the action, but the proceeding is had merely between the claimant and thejudgment creditor.”
For the error of the court below, in holding that thejudgment rendered by the justice of the peace in the proceeding for the trial of the right of property was conclusive against the constable and his sureties, the judgment rendered in this case must be reversed, and the cause remanded for further proceedings.