94 P. 260 | Kan. | 1908
The opinion of the court was delivered by
The first question presented for determination is one of fact: What was the usual place of residence of an Indian named M. Spitto at the time service of a summons was attempted? It is not dis
The bulk of the evidence introduced by the plaintiff relating to Spitto’s residence does nothing more than show absence from the place where his family lived. That which bears closely and directly upon the question is to be gathered piecemeal from the abstracts, and is conflicting. A careful sifting, however, in the light of the foregoing rules of law, brings out quite distinctly sufficient facts to sustain the conclusion of the trial court. It is not necessary to marshal those facts here. The finding being supported by substantial evidence, it will not be overturned.
The trial was before the court, without a jury. Considerable difficulty was experienced in arriving at essential facts. Frequently the trial judge found it necessary to interrogate the witnesses himself. Frequently hearsay evidence was admitted, and more came in by way of answers to proper questions, and error is assigned on this account. There is sufficient competent evidence to sustain the court’s finding. There is nothing to indicate that any improper evidence was considered by the court when it finally summed up the case, and under the well-known rule prejudice will not be presumed.
In the course of the presentation of the evidence a
Finally, the question is presented, What conduct is sufficient to constitute a valid levy of execution upon a field of standing corn ? The corn belonged to M. Spitto. His wife, B. Spitto, was a defendant in the execution. Spitto himself was away. The officer to whom the execution was directed and delivered for service went to the neighborhood of the field, found Spitto’s wife, read the execution to her, and told her he was going to take the corn. He then went to the corn-field with a witness and posted at a public place at a comer of the field, where two public roads cross, a notice that the corn was taken on execution and was in his possession. No one but himself and the witness was at the field. ' He then proceeded to post notices of sale. The next day he returned, found a man living near the field, told him he had taken the com on execution and had charge of it, showed him one of the sale bills, and asked him if he would look after it and see that stock or anything else did not get into it, which the man agreed to do. The levy was duly indorsed on the writ.
It is necessary that an officer levying an execution upon personal property shall take such actual and exclusive possession as the nature of the property will permit; Constructive possession is not sufficient where actual possession is feasible. (Gardner v. National Bank, 57 Kan. 619, 47 Pac. 516.) But actual possession of a field of standing corn is not practicable, and the officer is not called upon to do that in reference to it which, but for the writ, would make him a trespasser. In the nature of things there cannot be a manual seizure or holding in manual custody of that kind of property. If there be no bystanders an outcry of seizure would be futile. Therefore it is only nec
The judgment of the district court is affirmed.