59 Kan. 250 | Kan. | 1898
This case comes to us upon a certificate of division of the judges of the Court of Appeals of the Northern Department. The firm of Jordan Brothers recovered'judgment against Mrs. S. C. Sherman, a merchant. Execution upon this judgment was issued to the plaintiff in error, a constable. He levied it upon goods in possession of the defendant in error, which thereupon brought suit against him for dam
To this answer the defendant in error, plaintiff below, filed a reply admitting its possession of the property as mortgagee only, and alleging the making of an agreement by it with Mrs. Sherman to hold and sell the property, not only for the payment of the mortgage debt, but also for the payment of such orders as she might give upon it in favor of her creditors ; that it had accepted and agreed to pay a large amount of such orders so drawn upon it, and that the mortgage debt and the accepted orders exceeded in amount the total value of all the property covered by the mortgage. This reply also alleged the pendency of an action brought against plaintiff by another person claiming the ownership of the property, for damages for its conversion, which action, it is said, if finally decided adversely to plaintiff, would subject it to the payment of the full value of all the goods. Judgment was rendered in favor of the plaintiff below, from which judgment the defendant below prosecutes error to this court. The questions necessary to be noticed were raised in proper form by the defenddant below, at the trial and upon a motion for a new trial.
In addition to these considerations, if the question be viewed as one of evidence merely and not strictly as one of pleading, the position of the defendant in error is untenable. In Kennett v. Peters (54 Kan. 119, 37 Pac. 999), it was held that if the plaintiff in an action for the conversion of personal property is not the absolute owner of the property he must set forth in the petition his special ownership or interest in it, and that evidence of a qualified or special ownership will not support a claim of ownership absolute. This decision was followed and affirmed in the recent case of Ward v. Ryba (58 Kan. 741, 51 Pac. 223). The rule of these cases is directly applicable to the pleading and evidence of this plaintiff in this case.
The questions we have been considering were raised by plaintiff in error, defendant below, under an objec
It hardly needs to be said that the pendency of the controversy between the defendant in error and the other claimant of the property, who, as before mentioned, had sued the defendant in error for its conversion, constitutes no part of a cause of action against the plaintiff in error. Even had the existence of such controversy been set out in the petition, it would have been unavailing. For a plaintiff in an action for damages for the conversion of personal property to ground his case upon the fact that he had been sued for conversion of the same property by another person, would indeed be an extraordinary pretense of legal right.
An objection was made to the consideration of the pleading first' noticed, on the ground of some obscurity in the record as to an amendment of the petition ; but it was not well taken.
The judgment of the District Court is reversed, with directions tó award plaintiff in error a new trial, and for such proceedings in conformity to this opinion as may be proper.