Meixell v. Kirkpatrick

25 Kan. 19 | Kan. | 1881

The opinion of the coprt was delivered by

Valentine, J.:

This was an action brought by Worth-ington Meixell against S. S. Kirkpatrick and another, in the district court of Labette county; to perpetually enjoin the enforcement of a certain judgment rendered in the district court of Wilson county. This judgment is the replevin judgment mentioned in the case just decided, of Meixell v. Kirhpatrich. The principal facts alleged in the plaintiff’s petition in this case are substantially as follows : Kirkpatrick commenced an action in the district court of Wilson county against Worthington Meixell and- - Angelí Matthewson, charging them as joint wrong-doers in obtaining and converting eight municipal bonds belonging to Kirkpatrick. Various proceedings were had in the case, resulting finally in the rendition of separate judgments against Meixell and Matthewson. The judgment against Meixell was in replevin for a recovery of the bonds or their value. The judgment against Matthewson was in trover, for the damages sustained by reason of the conversion of the bonds, including the value of the bonds. Afterward Kirkpatrick, for value received, transferred and assigned his said judgment against Matthew-son to Cornelia W. Matthewson, the wife of the judgment debtor. And Kirkpatrick is now about to enforce, in Labette ' county, by an execution issued from the district court of Wilson county, his judgment rendered against Meixell in Wilson county. The defendant answered to this petition, and the plaintiff demurred to the answer, and the court below sustained the demurrer as against the petition, holding that th.e petition did not state facts sufficient to constitute a cause of action; and from this ruling and holding of the court below, Meixell now appeals to this court.

We do not think that the court below erred. Meixell has not satisfied either of said judgments, uor has either of them been satisfied by any other person. Both judgments are still in full force and unsatisfied; the judgment against Meixell being held and owned by Kirkpatrick himself, and the one against Matthewson being held and owned by Kirkpatrick’s assignee, Mrs. Matthewson. Kirkpatrick, or his assignee, is certainly entitled to one satisfaction or to one compensation for the bonds upon which the judgments were rendered, and until such satisfaction or compensation is rendered, neither judgment can properly be enjoined. When Meixell or Mat-thewson satisfies one of said judgments, there will then be time enough to enjoin the other. We have thus far not taken into consideration the defendant’s answer in this case; and, for the purposes of deciding the case, we do not think that we need to do so. We do not think that the answer cured the defects of the petition. It must be remembered that neither Mrs. Mathewson nor Angelí Matthewson is a party to this suit, and therefore their rights cannot be adjudicated or determined in this action. Whether the compensation for said bonds should go to Kirkpatrick, or to his assignee, Mrs. Matthewson, cannot be determined in this case, as Mrs. Mat-thewson is not a party to this suit. If both judgments were allowed-to stand, and if Meixel'l.were ready and willing to satisfy the judgment against him, then the matter would possibly be a proper subject for interpleader. But Meixell has never been ready or willing to satisfy, the judgment .against him; and by the decision of this court in the case in which such judgment was rendered, the judgment is to stand conditionally vacated until a trial cari be had upon the merits of the action, and what shall then become of the judgment depends entirely upon the result of that trial:

The judgment of the court below in this case will' be affirmed.

All the Justices concurring.