5 Kan. 202 | Kan. | 1869
By the 'Court,
The facts in the ease are substantially as follows : The plaintiffs and sundry other persons, creditors of said Stern, obtained several judgments against him. Attachments and executions were issued in said cases, and levied by John McKee, sheriff, and James Franks and Livius Hazen, constables, upon certain property, which was then in the possession of Aaron Hollenbeck, and claimed by him as his property, but which property, had formerly belonged to Stem, and had been purchased by
After the officers had levied the attachments and executions upon said property, Hollenbeck replevied it from them, and said Bauer went on the replevin bond as surety for Hollenbeck. Bauer took the property into his possession to indemnify himself as surety for Hollenbeck, and with the consent of Hollenbeck converted the property or a part thereof into money.
The replevin cases were decided against Hollenbeck, and in favor of the officers. There was no judgment rendered in any one of the cases for a return of the property to the officers, but in two of the cases, as we should judge from the record; although the record is not very clear upon this point, judgments were rendered in favor of the officers for the value of the property replevied, and in one case a judgment was rendered for the costs of the suit only. And as all the property that had been levied on to secure the claim of Kayser & Co., against Stern, had been replevied in this latter case, the judgment in this latter case for costs only, left Kayser & Co. without any security for their claim.
After the judgment in the replevin cases were ren ■ dered Kayser & Co. garnished Bauer, requiring him to answer before R. R. Rees, a justice of the peace. Bauer appeared and answered. At the time Bauer was garnished, he had a sufficient amount of money of the proceeds of the sale of the goods, which he had received of Hollenbeck, to pay all of Kayser & Co’s, claim against Stern; but afterwards Bauer paid out all said money on the other judgments rendered against Stern in the replevin suits in which he was surety for Hollenbeck.
After the justice heard Bauer’s answer he discharged
The questions arising in this case for us to consider are : First, "Was the decision of the justice of the. peace final, or had Nayser & Co. a right to appeal ? Second, Was the decision of the district court final, or can Nayser & Co. bring the proceeding into this court for review ? and Third, If they have got their case properly into this court, is Bauer liable as garnishee or, in other words, did he, at the time he was garmshed, have any money or property in his hands belonging to Stern and subject to garnishment? And involved in this last question are several others, which we will notice when we reach them.
Jnagaau Garnisbee appeal-viewable. First. Under sections 5, '6 and 7, of “An act supplemental to an act entitled an act regulating the jurisdiction and procedure before justices of the peace, and the duties of constables in civil cases,” approved February 26th, 1867, [Laws of 1867, page 78,] a judgment of a justice of the peace in a proceeding in garnishment is such a final judgment as may be appealed from to the district court; and Secondly, If appealed from, the judgment of the district court in such a case, being also a final judgment, is subject to review on petition in error, in this court.
ÍTtAUDÜMBXT sale: Title. Thirdly. The propertv over which all the controversy has been had, and which consisted of goods and merchandise, belonged originally to Stern. Stern sold it by a fraudulent sale to Hollenbeck, which, as between Stern and Hollenbeck, transferred the property to Hollenbeck; but as between Stern and Hollenbeck on the one side, and Stern’s creditors on the other, said sale did not produce any change in the title to the
Title under a. Lovy. "When the officers levied upon the property they obtained a special if not the general property in the goods, and it makes no difference so far as this case is concerned which they obtained; for their interest in the goods, whatever it may be, was as long as the levy subsisted in full force, paramount to that of Stern, or Hollenbeck, or any one else; and Stern and Hollenbeck were divested of every interest that could again be attached or held by garnishment. They were divested of every interest except a possible, contingent, and residuary interest that would revert to them, if the levy should be vacated, or if it did not take all the property to pay the claims; and none of the subsequent proceedings had the effect to reinvest Stern with such a title to the property as would allow these or other creditors to attach the property by a proceeding in gaimishment.
It is claimed by counsel for Kayser & Co. that when Hollenbeck replevied the property, neither the suing out of the writs nor the giving of the bond, changed the title to the property, that the officer’s liens on the property were not destroyed, but only suspended during the litigation, and that, as Bauer took the property into his possession simply to indemnify himself as surety on the replevin bonds, he was not an innocent or bona fide purchaser, and obtained no better title to the property than Hollenbeck had.
Now, jmder our statutes [Code of Civil Procedure, 1859] we suppose this is all good law. [See authorities cited in counsel’s briefs.] The title to the property during the litigation remained the same as it was before, in
But this does not help Kayser & Co., for if the title to the goods remained the same as before, Stern was certainly not reinvested with such an interest in the goods that they could be taken in garnishment.
judguknt is Bepievm. If the officers had obtained a judgment in the repievin suits for a return of the property to them, then they could have retaken it, and held it under their original levy. Their right to it would then have been paramount to all others. But neither Stern nor Stern’s creditors could have retaken it; Stern would still have had only his contingent and residuary interest in the property.
But the officers obtained no judgment for a return of the property to them. Hence we think that the right of possession of Hollenbeck, and of those holding under him, continued, and their special and contingent right of property ripened at once into a general and absolute right of property.
The plaintiff in replevin under our code [ Code of 1859] is bound only to prosecute his action to final judgment, and pay all costs and damages which may be awarded against him, and return the property to the defendant, if such be the judgment of the court. The defendant has a right, when the 'verdict is in his favor, to take a judgment for a return of the property to him, or for the value thereof in case a return cannot be had, and he is bound, at his peril, to see that the judgment is .rendered as he desires it. He waives all right to a return
After the determination of the replevin suits, whether Stern still had any possible interest in the property, contingent, residuary, or any other kind of interest, it is not necessary for us to consider, for he certainly had no interest in it that was subject to garnishment.
The officers by their levy obtained the paramount right to the property; their right passed to Hollenbeck by the determination of the replevin suits, and Bauer held under Hollenbeck.
The judgment of the court below is affirmed.