53 Kan. 68 | Kan. | 1894
This was a controversy regarding the validity of a mortgage and transfer of a stock of groceries, made by J. H. Carroll & Co. to the Miami County National Bank, of Paola. The mortgage was executed to secure an actual indebtedness of the firm to the bank of about $300, and also a claim of $2,700 which the bank held against Frank S. Carrol], who was not a member of the firm of J. H. Carroll & Co. Immediately after the execution of the mortgage, the bank took possession of the stock of goods. They were subsequently seized by George D. Barkalow, as sheriff; under eight executions issued from the district court, upon judgments that had been rendered against J. H. Carroll & Co. The bank and one T. S. McLachlin, who had also obtained a mortgage upon the stock, commenced a joint action of re-plevin against the sheriff, and upon a trial the court sustained a demurrer filed by the defendant, upon the ground that there was a misjoinder of parties plaintiff. They then asked permission to file separate petitions, which was denied, and the jury was discharged. Afterward, upon the application of plaintiffs, a new trial was granted, when a separate petition was filed by plaintiff, and a separate action docketed. The sheriff answered with a general denial, and a trial was had with a jury, which resulted in a verdict for the defendant, that he was entitled to the stock of groceries, the value of which was $1,450, and that the sheriff’s interest therein was $1,532.33. Judgment was rendered against the bank, in favor of the sheriff, for the return of the property, or the recovery of the value of the same, with costs.
In this proceeding for review, the first ruling criticised is the one holding that there was a misjoinder of plaintiffs as the action was originally brought. As a new trial was granted, that ruling is no longer material.
The judgment of the district court will be affirmed.