58 Kan. 607 | Kan. | 1897
E. L. McDowell executed, to S. S. McDowell, the plaintiff in error, a chattel mortgage upon the whole of his stock of jewelry. The First National Bank of Cleveland, Ohio, a creditor of E. L. McDowell, procured the levy of an attachment upon a portion of the mortgaged property. The writ was issued to O. S. Gibson, the defendant in error, as sheriff, and was executed by him. Soon thereafter, B,. E. Burdick, another creditor of E. L. McDowell, procured the issuance of another attachment, and its levy upon the remainder of the stock of jewelry. The writ in this case was likewise issued to and executed by the defendant in error, O. S. Gibson, as sheriff. Two replevin actions were thereafter instituted by S. S. McDowell against O. S. Gibson; one to recover from him the portion of the stock attached at the suit of the First National Bank, the other, to recover the portion attached at the suit of Burdick. In both cases the plaintiff claimed in virtue solely of the chattel mortgage held by him. In the one brought to recover the portion of the stock attached by the bank, a trial upon the merits was had, resulting in a final judgment in favor of the defendant, Gibson. The case brought to recover the portion of the stock attached by Burdick is the one now for consideration. In the court below, the defendant Gibson pleaded the former judgment rendered in his favor in the action to recover the other portion of the jewelry stock, in bar of the suit to recover the remainder. The court held such former judgment to be conclusive in the latter action ; and the sole question for consideration is whether such is the law.
It is said that to sustain a plea of res judicata there must be a concurrence of four conditions : “First, identity in the thing sued for ; second, identity of the cause
The plaintiff in error, adhering to the refinements of distinction drawn in the cases of Benz v. Hines and A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., supra, contends that the two conditions of identity of subject-
Nor is the view that the two cases lack identity of parties the correct one. In both actions, Gibson, and he alone, was sued. While he held the disputed property by virtue of attachments, he held it in his official z*ight. The law gave to him the right to defend his possession. He controlled the defenses to the actions and was responsible for any judgments that might have been rendered against him. The attaching creditors made no application to be let in to defend, nor did either of the parties ask to have them made defendants. Gibson was, therefore, not only the actual but the real defendant in each instance. The case is .identical with that of Hoisington v. Brakey (31 Kan. 560 ), in which it was held :
“In an action against a sheriff for the recovery of*611 property taken under an execution and replevied by the plaintiff in such action, the sheriff is not only the actual but the real party defendant where the judgment-creditor makes no application to be made defendant and is not substituted as the defendant.
“ Where the court has full jurisdiction of the parties and the subject of two actions of replevin for the recovery of certain animals, and the parties are identical, and the evidence to support both cases is the same and the defense the same and the issues in the actions are precisely alike, except that the petitions refer to different animals, a judgment in the first case is conclusive between the parties not only as to that case, but also as to the second.”
The judgment of the court below will, therefore, be affirmed.