43 Kan. 558 | Kan. | 1890
Opinion by
This action was commenced by Geo. A. Williams in the district court of Pratt county on the 19th day of November, 1887, against the sheriff of Pratt county, to recover possession of a general stock of merchandise in the town of Preston, in said county, that was in the custody of the sheriff by reason of attachment proceedings against one Matthew Williams, at the suit of several wholesale merchants. Geo. A. Williams is the son of Matthew Williams, and claims to be a purchaser for value of the stock of merchandise attached. There was a trial by a jury and a verdict and judgment in favor of Geo. A. Williams for the return of the property, or its value, assessed at $1,000, and for $180 damages for its detention. A motion for a new trial was overruled. The sheriff brings the case here for re
One of the principal errors complained of was the overruling of a motion to set aside the writ of replevin, because there was no affidavit in replevin. As this was provisional, and the plaintiff in the action did not get the property by virtue of the writ of replevin, it becomes entirely immaterial after judgment. Even if the writ of replevin never issued, the action could proceed as one for damages. An action in replevin may be maintained under our code without a seizure of property at some time before the final determination of the suit, and therefore without an affidavit. (Hoisington v. Armstrong, 22 Kas. 110; Wilson v. Fuller, 9 id. 177; Ward v. Masterson, 10 id. 77.)
In the case of Batchelor v. Walburn, 23 Kas. 733, Brewer, J., speaking for the court and construing §176 of the code, says:
“The plaintiff may, not must, and he may, at the commencement, or at any time before, answer. The action exists, or may exist, before the order. The section recognizes the action, and says certain things may be done in it. It nowhere provides that a failure to take the order abates the action, or that defendant may prevent a recovery by showing that plaintiff has not availed himself of all the privileges which the statute has given. The order for the delivery is ancillary. It is like an order of injunction, which may be the final judgment, or a provisional remedy. (Code, § 237.) In replevin, the judgment may be for the possession, or the value thereof in case a delivery cannot be had. (Code, §185.) And delivery may be enforced after judgment by attachment, as for*561 a contempt. (Code, §188.) It would be a strange omission if such action could not be maintained — in many cases a gross denial of justice.”
It is evident from all these cases that, even if there was no affidavit in replevin in this particular case, the error overrnl ing the motion to set aside the order of replevin for that reason is now, after judgment, and probably before, an immaterial one. In any event, it probably could only affect a question of costs. It could not abate the action; this is not only expressly decided, but clearly demonstrated.
The next error seriously urged for reversal is, overruling a motion for continuance. On Saturday, the 14th day of January, 1888, during the regular term of the Pratt county district court, an order was made continuing this case, with all others, until the April term. This order was made by the judge on his own motion. In a few minutes thereafter the court announced that the orders for continuance made previously in all such cases would be set aside, and the cases tried during the following week. And on the 17th day of January following, the court caused an order to be entered on the journal setting aside the orders for continuance heretofore made. To this latter order, the plaintiff in error excepted. This order also assigned this case for trial on the 18 th day of January. The case was not reached for trial in regular order until the 20th day of January. On the 19th day of January the plaintiff in error filed his motion for a continuance. On this statement the plaintiff in error claims that by the order of continuance made by the court on Saturday, the 14th, the ease was off the docket for that term, and passed out of the control of the court and could not be reinstated.
In the case of Gray v. Ulrich, 8 Kas. 112, a continuance was granted by consent of the parties, but afterward during the term, on application of one of the parties, in the absence of the other, the continuance was set aside, and the case heard. The court, commenting on some other errors, says:
“Ordinarily, too, it is improper after a case has been continued to set aside the continuance and dispose of the case in*562 the absence of one party, and on the application and in favor of the other. A record thus scarred is hot comely to look upon. However, if these were the only errors we should probably be constrained to let the judgment stand, until at least application had been made to the court in which it was rendered to vacate it.”
This is a much stronger case than the one we are considering. Here the order of continuance was only in existence a few minutes, was made by the court on its own motion, and changed by the court. The case was not tried or disposed of in the absence of either of the parties to the action.
In the case of The State v. Plowman, 28 Kas. 569, a criminal case in which the defendant was charged with robbery, a continuance was ordered by the court on the motion of the defendant. Shortly after this, the order of continuance was set aside and the case tried. Substantially the same claim was urged for reversal in that case as in this. It was said that when the court made the order for continuance the case wholly passed beyond the jurisdiction of the court for that term. This was denied by this court, and the conviction and judgment affirmed. The trial judge makes a statement respecting this continuance, and incorporates it in the case-made; but it is not material except in his statement that he ordered the order of continuance set aside within a very few minutes after it was made. We have grave doubts whether, under any fair construction of the motion for a new trial filed in this case, this alleged error was called to the attention and passed upon by the trial court; but we have considered it, and do not think it is a sufficient cause for reversal. This brings us to the consideration of the sufficiency of the affidavit for a continuance; and it so manifestly falls within many of the reasons given in the cases of Kilmer v. Ft. S. & W. Rld. Co., 37 Kas. 84, and Board of Regents v. Linscott, 30 id. 240, and is especially so largely in the discretion of the trial court, that its ruling will not be held to be erroneous.
Finally, it is insisted as causes for reversal, that the amount of damages is excessive, and that there is error in the assess-
We recommend an affirmance of the judgment.
By the Court: It is so ordered.