23 Kan. 396 | Kan. | 1880
This was an action of mandamus, brought by Duane Hall against J. S. Stewart, to compel Stewart, as •clerk of the district court of Greenwood county, to issue an execution on a certain judgment rendered in favor of the plaintiff in an action of replevin for personal property, in which action Duane Hall was plaintiff and George L. Mitchell was defendant. The judgment in the replevin action reads as follows:
“It is therefore considered, ordered and adjudged by the court, that the plaintiff have a judgment against the defendant for the return of said property, if a return can be had, and for the sum of one hundred and ten dollars, his damages caused by the unlawful taking and detention of said property; and in case said property cannot be returned, then, that the plaintiff have and recover of the defendant judgment for the sum of one hundred and sixty-one dollars, the value of said property, and for his costs herein, taxed at $ — . And hereof let execution issue.”
After this judgment was rendered, the defendant, Mitchell, appeared and paid to the clerk of the court the said sum of $161 and all the costs of the suit, which sum of $161 the clerk paid to the plaintiff, Hall, which sum the plaintiff' accepted and received. Afterward, the plaintiff demanded that the clerk should issue an execution on the judgment, for the collection of said sum of $110 damages, and the clerk refusing, the plaintiff then commenced this action of mandamus against the clerk to compel him to do so. The court below decided the case against the. plaintiff, and in favor of the -clerk; and the plaintiff now, as plaintiff in error, brings the case to this court for review.
Now, as said sum of $161 was actually paid by the defend.ant (Mitchell) and received by the plaintiff (Hall), we think that it must be held that the parties agreed that the property •could not be returned, and the case must be decided upon -that theory; and the judgment provides that “in case said property cannot be returned, then that the plaintiff recover
The judgment of the court below will be affirmed.