3 Kan. App. 437 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
This was an action in replevin brought in the district court of Chase county by C. C. Whitson against J. W. Griffis, as sheriff of said county, to recover the possession of certain personal property claimed by Whitson under a chattel mortgage, and which had been taken by the sheriff under a certain order of attachment issued out of said court in an action brought by the Smith-Frazier Boot and Shoe Company against M. E. Breese. ’ From a verdict and judgment in favor of Whitson, the sheriff brings the case here for review. A number of errors is alleged, the first being the admission of a certain promissory note as evidence in the trial of said cause. It appears from the record that the claim of Whitson was founded upon a certain note and chattel mortgage. A verified answer was filed in the case which put in issue the execution of the promissory note, and when said note was offered in evidencie there appeared a discrepancy in the date and amount as compared with the note described in the mortgage. We think the court committed no error in admitting the note in evidence. Proof of the execution thereof had been made, as well as an explanation of the difference in date and amount.
Under the pleadings in this case and the evidence as shown by the record, we are of the opinion that the court committed error in admitting this chattel mortgage in evidence. From the pleadings, it appears to have been admitted that there was no change in possession of the goods described in the mortgage, but that the same remained in the possession of the mortgagor. It therefore became a very essential question whether said mortgage was of record when the levy was made by the sheriff. The answer being verified, every allegation of the petition was put in issue. The mortgage bore an indorsement made by one who pur- ■ ported to be a deputy register of deeds, and we think the court properly admitted evidence as to the fact that the person who purported to be said deputy was publicly acting and generally recognized as such, and we also think that the evidence introduced established prima facie the offióial character of the deputy in question. But that is not sufficient in this case. The provisions of the statute with relation to chattel mort
Paragraph 3904 of the statutes provides as follows:
“ Upon the receipt of any such instrument, the register shall indorse on the back thereof the time of receiving it, and shall file the same in his office, to be kept there for the inspection of all persons interested.”
It is true that paragraph 3907, General Statutes of 1889, provides that a certified copy of the original or copy so filed shall be received in evidence, but the same paragraph specially provides what it shall be received as evidence of in the following language :
“But only of the fact that such instrument or copy and such affidavit was received and filed according to the indorsement of the register thereon, and of no other fact.”
It being necessary therefore that a chattel mortgage remain on file, and the certificate of the register being evidence of no further fact than the original filing, it certainly follows, at least where a verified answer is filed, that it is necessary to show that either the original chattel mortgage or a copy thereof remained on file when the only copy of such instrument claimed to have been filed is found, not in the possession of the public officer but of the mortgagee, and there has been no change of possession in the property mortgaged.
The next objection raised is as to the ruling of the court regarding certain testimony offered by the defendant below upon the examination of C. C. Whitson, plaintiff below. The object of the questions asked was to draw from plaintiff below a detailed account of where he obtained the money which he claimed to have loaned to M. E. Breese, and which it was claimed formed the consideration for the chattel mortgage in question, the bona fides of the transaction being ques
“Wylie introduced in evidence the deposition of Wallach, taken on behalf of Wylie ; and the plaintiff in error, Wallach, now claims that Wylie was and is*443 bound by everything that was testified to in such deposition by Wallach. This certainly is not the law,, and such a thing never was the law. It is true that, when a party introduces a witness, he cannot then impeach the general character or reputation of such witness for truth and veracity, and it is generally true that he cannot show that the witness has made statements at other times and at other places contradictory to those which he testifies to. But neither of those cases is this case. Wylie did not attempt to impeach the general character or reputation of Wallach for truth and veracity, nor did he attempt to show that Wallach had made statements at other times and at other places contradicting the statements made by him in his deposition, although Wylie would certainly have had the right in the 'present case to show such contradictory statements, for the very good reason that Wallach himself was a party to this action. Wylie could have shown such contradictory statements, not for the purpose of impeaching Wallach, but as original evidence —original evidence of Wallach’s admissions. The principal fact in controversy in this case was, whether the chattel mortgage executed to Wallach by Max N. Stetter, as the attorney in fact of Nathan Stetter, was executed for the purpose of hindering, delaying and defrauding the creditors of Nathan Stotter, or not; and the deposition of Wallach was introduced by Wylie for the purpose of proving, or tending to prove, that it was ; and of course Wylie believed- that it did prove, or tend to prove, that fact.”
In this case Whitson had detailed what may be denominated a peculiar story of the manner in which he had received the money loaned Mrs. Breese, the substance’of which was, that he had been left the sum of $5,000 as a legacy, and that the money had been brought to him by one Stone. The' vAtness was asked the following question : “You testified about that matter in your Topeka deposition, did you not, judge? ” And said question being objected to, the objection was sus
The next contention is that the court erred in refusing to admit certain depositions offered by plaintiff in error. The evidence contained in the depositions tended to prove that the statements of Whitson as to obtaining the money referred to in his testimony were not true, and the depositions were refused upon the ground that they were incompetent and immaterial, and only tended to impeach one' who had been used by plaintiff in error as his own witness. The question is one which is not free from doubt. The general
A number of other errors are assigned, among them-certain objections to the instructions of the court and exceptions to the refusal of the court to give certain instructions asked by plaintiff in error. We have carefully examined the instructions given and those refused, and are of the opinion that no error was committed by the court in that regard. All other questions raised will probably be eliminated upon another trial of the case, and will therefore not be considered here.
For the errors above referred to the judgment of the district court will be reversed, and the cause remanded for a new trial.