29 Kan. 661 | Kan. | 1883
The opinion of the court was delivered by
This case grows out of the same transactions as were presented to this court in the case of Blair v. Shew, 24 Kas. 280. The facts briefly stated are as follows: Morris and Wolfley held a claim against defendant in error. John Garvin also held a claim against him. On August 2, 1879, suits were commenced before a justice of the peace on
The defendants object to the judgment of $52 against them, and the plaintiff insists that he should have judgment for the $330 additional. Considering first the questions raised by the defendants, now plaintiffs in error, we remark that the service of the attachment process upon Sunday was void. In the case in 24th Kansas, supra, we assumed, but did not decide, that such levy was void. We now hold that it was void. It is unnecessary to consider what conduct on the
This disposes of the case so far as the plaintiffs in error are concerned. So far as respects the cross-petition filed by the defendant in error, we may remark that having elected to take the judgment for $52, he is hardly in a position to complain of the refusal of the court to give him judgment for $330 more.
Again, his right to recover the $330 depended upon whether he was a resident of the state of Kansas upon Monday, and we think such residence under the testimony' is so doubtful that notwithstanding the findings of the jury, we do not feel warranted in disturbing the ruling of the court thereon. It would be in effect reversing an order granting a new trial, which for reasons often stated is rarely done. Furthermore, there may be a question as to how far the decision of the replevin action is conclusive in this respect. We do not care, however, to pursue this iriquiry. It is enough for us to say that the evidence of a residence acquired on Monday is SO’
There being no other question, the judgment will be affirmed.