18 Kan. 288 | Kan. | 1877
The opinion of the court was delivered by
Gross brought an action of replevin against the defendants. Upon the trial he proved title in himself, possession in defendants, and demand, and rested. In his testimony it appeared that one of the defendants claimed
The ruling of the district court can be sustained only upon the theory, that an action of replevin will not under any circumstances lie against an officer to recover property held by him under a writ of replevin. The question must be settled by a reference to our statutes, for it will not be doubted that, at common law, property in the hands of an officer under a writ of replevin was in custodia legis, and could not be taken from him by means of another writ. And the same was true of executions, and other process. 1 Chitty’s Pl. 164. Our statute has modified the common-law rule, at least as to all process except the writ of replevin, or (as it is termed in the code,) the order for the delivery of property. Westenberger v. Wheaton, 8 Kas. 178. That was a case where the defendant in an execution attempted to replevy, and the court held that as to him the common-law rule applied. It however stated the exceptions to that rule in.these words, Ch. Justice King-man delivering the opinion: “The code has so modified this, that any person other than the judgment-debtor, or person against whom the process is issued, may have this remedy because the issues made in any such proceeding by a stranger raise no question as to the validity or regularity of the judgment or process.” While this reason does not apply with equal force in the case at bar, because the command to the officer in a writ of replevin is specific, to seize the particular property and deliver it to the plaintiff, and. so in a certain sense the second action challenges the propriety of the first writ, yet it must be remembered that no question is made as to the validity of the proceedings, or regularity of the process, as between Knight and Wilson. The plaintiff claims adversely to both Knight and Wilson. And so far as appears from the testimony offered, his property was, without the slightest pretext or excuse, seized and held by the officer in a proceeding to which he was not a party, and in which he
The district court therefore erred in sustaining the demurrer to plaintiff’s evidence, and the ease must be remanded with instructions to grant a new trial.