29 Kan. 597 | Kan. | 1883
The opinion of the court was delivered by
This was an action of replevin, brought by M. A. Bates against J. R. Parker, for the recovery of certain drugs, medicines, and other articles constituting a part of a drug store. It appears that, some time prior to the commencement of this action, one J. H. Lawson obtained a judgment before a justice of the peace of Harvey county, Kansas, against C. H. Bates, the husband of the plaintiff in this action, and caused an execution to be issued on such judgment, which execution was put into the hands of J. R. Parker, the defendant in this action, who, as constable, levied the same upon the property in controversy, as the property of C. H. Bates. Soon thereafter, M. A. Bates, the wife of C. H. Bates, replevied the property from the constable, claiming the same as her own separate property. A trial was had in the district court, before the court and a jury, which resulted in a verdict and judgment in favor of the plaintiff and against the defendant for the recovery of the property, and for $50 as damages for the wrongful detention thereof. For the reversal of this judgment, the defendant now brings the case to this court.
The first and one of the principal propositions advanced by the plaintiff in error, defendant below, is that the plaintiff below, M. A. Bates, having originally invested only about $100 in the drug business, and then having intrusted it to the management of her husband as her agent, under whose management the stock was increased in value to the amount of $700 or $800, that thereby the stock became his and she became only a preferred creditor, entitled only to the money originally advanced by her and interest thereon. This proposition we think is not correct; but even if it were correct, it
The next proposition of plaintiff in error is, that the verdict and judgment are against the preponderance of the evidence. Now we cannot reverse the judgment for that reason only, when manifestly there is sufficient evidence to sustain the verdict and judgment.
The third proposition of the plaintiff in error is, that the court below erred in overruling the motion of the plaintiff in error, defendant below, for a new trial, on the ground of surprise which ordinary prudence could not have guarded against. On the trial, the defendant below attempted to prove that C. H. Bates put about $450 of his own money into a grocery business in March, 1879, and that afterward he sold his interest in the grocery and put the proceeds thereof into the drug business, which drug business included the property now in controversy. The defendant proved on the trial
A new trial is seldom granted for the purpose of per
The fourth proposition of the plaintiff in error, defendant below, is, that the damages found by the jury are excessive. The damages assessed are $50. It would seem to us that this is more than the jury should have allowed; but still, the damages do not appear to be so excessive as to show that the jury were governed by passion or prejudice, or as to authorize this court to reverse the judgment of the court below, which approved the verdict of the jury.
The judgment of the court below will be affirmed.