Manning v. Manning

26 Kan. 98 | Kan. | 1881

The opinion of the court was delivered by

Brewer, J.:

This was an action on a replevin bond. The petition set forth a copy of the bond, which was in the ordinary statutory form, and alleged that the plaintiff in the replevin action, having obtained possession of the property," dismissed his action without going to trial. The petition in this action alleged the value of the property replevied in the other, and prayed judgment against the sureties in the replevin bond for such value. A demurrer to this petition was made, and overruled; and this ruling is the error complained of. It may be remarked that, prior to the demurrer, the defendants moved to strike from the petition all allegations of the value of the property replevied; and also moved to make the petition more specific and definite, by attaching to it a copy of the order and judgment entered at the time of the dismissal of the action. Both these motions were overruled. Upon the question raised by the demurrer, it is insisted that the statute provides for determining the rights of the defendant in a replevin action, in ease of a dismissal by the plaintiff (McVey v. Burns, 14 Kas. 291); and that the liability of the sureties is determined by the judgment rendered in such action (Kayser v. Bauer, 5 Kas. 211); and that therefore no liability attaches to the sureties, except as fixed and determined by the judgment in the replevin action. We cannot assent to this proposition of plaintiffs in error. Doubtless the defendant in a replevin action has a right to insist upon a trial and judgment, notwithstanding a dismissal by the plaintiff (McVey v. Burns, supra); and unquestionably, if he has such trial and judgment, his rights are determined thereby (Kayser v. Bauer, supra). But if, on the other hand, upon a dismissal by the plaintiff of his action, the defendant does not seek a trial and judgment, he is not precluded of his full remedy upon the bond. One of the conditions of the bond is, that the plaintiff shall duly prosecute his action. That is a separate and independent condition. Upon breach of that condition, the defendant is entitled to recover all the damages he has sustained thereby. The fact that he has not pursued one remedy given by statute does not deprive him of the general remedy upon the bond. (Marix v. Franke, 9 Kas. 132.) He may bring his action upon the bond; and as that bond was conditioned that the plaintiff should duly prosecute the action, and as by the dismissal thereof plaintiff has so failed to prosecute, and as by means of the boud plaintiff has obtained possession of property apparently belonging to the defendant, the defendant is, prima facie at least, entitled to recover of the sureties the value of the property thus taken from him.

The following authorities sustain the ruling of the district court: Berghof v. Heckwolf, 26 Mo. 511; Hanson v. Reed, 29 id. 473; Elliott v. Black, 45 id. 373; Hall v. Smith, 10 Iowa, 45; Brown v. Parker, 5 Blackf. 291; Mills v. Gleason, 21 Cal. 274; Humphrey v. Taggart, 38 Ill. 228. Its ruling must therefore be affirmed.

All the Justices concurring.