15 Kan. 376 | Kan. | 1875
The opinion of the court was delivered by
The defendant in error, as plaintiff, brought his action in the district court of Labette county, alleging that Hamlyn the defendant had converted certain personal property belonging to plaintiff, and asking judgment for its value. The defendant answered that the plaintiff, being a judgment-debtor in sundry cases, had requested him to become surety on a stay of execution upon such judgments, and that he had so done; that to indemnify him plaintiff had given him a chattel mortgage upon the property described in the petition, a copy of which mortgage.was attached to the answer; that, as authorized in said instrument, he had sold some of the goods and applied the proceeds in payment of said judgments; that he had paid on said judgments more than he had received from, the sale of the goods; and finally, that the plaintiff was indebted to him in sundry matters. A-general denial was filed for reply. The case was referred to a referee, who made his report, with a finding of facts, and conclusions of law. The testimony is not preserved. A motion was made in the district court to set aside the report of the referee, because “ not sustained by sufficient evidence, and contrary to law.” This motion was overruled and exceptions duly taken. The referee finds, among other things, that the chattel mortgage set forth in the answer was executed as alleged, that the plaintiff was a judgment-debtor, and the defendant became security for stay of execution as stated. He did not find that those judg
The judgment' of the district court will therefore be reversed, and the case remanded with instructions to sustain the motion to set aside the report of the referee.