22 Kan. 110 | Kan. | 1879
This was an action of replevin, brought by John B. Armstrong against George Hoisington, for the recovery of a buggy, horse, and harness. The case was tried. in the court below before the court and a jury. The verdict and judgment were in favor of the plaintiff and against the defendant, and the defendant, as plaintiff in error, brings the •case to this court. But as error must be shown, and cannot be presumed, we hardly think that the judgment of the court can be reversed. The plaintiff in error says in his brief: il Where property is seized under an order of attachment-against a given person, such person cannot replevy the same in the hands of the officer.” This is a correct proposition of law with reference to property not exempt from attachment, but it is wholly immaterial whether it is correct or not so far as this case is concerned. The affidavit for the order of replevin shows as it should do under section 177 of the code (Gen. Stat. 661), that said property was not taken in execution on any order or judgment against the plaintiff below, or for the payment of any tax, fine, or amercement assessed against him, or by virtue of an order of delivery issued in replevin, or any other mesne or final process issued against him; and the petition below is silent with reference to all these things. The plaintiff in error, therefore, among others makes the following points: Second, The affidavit required by statute (Gen. Stat., ch. 80, §177), is no pai’t of the pleadings, and the facts therein set forth form no part of the issues in the case. Third, It wfas necessary for plaintiff to allege in his petition that the property was'not taken in execution on any order or judgment against him. (Gist v. Loring, 60 Mo. 487.) Fourth, The facts required to be stated in the affidavit must exist, and be established, or replevin will not lie. (Westenberger v. Wheaton, 8 Kas. 169.) The second proposition is a correct statement of the law on this subject. The facts set forth in the affidavit form no part of the issues in the case, unless they are again set forth in the pleadings.
The plaintiff in error also says in his brief:
“Fifth, But even if it devolved upon defendant below to allege, and prove, as a matter of defense, that the property was taken in execution on any order or judgment against plaintiff below, this was sufficiently alleged in the answer, and such allegation, in the absence of replication, stands admitted. (Bailey v. Bayne, 20 Kas. 657.) ”
The judgment of the court below will be affirmed.