Reedy v. Gift, 2 Kan. 392

Reedy v. Gift

2 Kan. 392 | Kan. | 1864

JBy the Court,

Crozier, O. J.

One Mary Miller brought a suit in replevin before John S. Lucklin, a justice of the peace, against George Reedy, the plaintiff in error, for the recovery of a sorrel mare. The writ' was served and the property delivered to Mrs. *398Miller, who executed a bond in the ordinary form, with Gift and Taught, the defendants in error, as her sureties. Mrs. Miller failed to prosecute her action, and judgment was rendered against her for one hundred dollars and costs; upon which judgment execution was issued and returned, “ no goods.” Suit was then brought by Eeedy before E. 0. Manning, a justice of the peace, against Mrs. Miller, Gift and Taught, upon the replevin bond. A very full bill of particulars was filed by Eeedy, setting out the foregoing facts. Mrs. Miller was not served. Gift and Taught filed a motion to dismiss, setting out,

1st. There was no judgment in the action of replevin, because the justice who pretended to render the judgment had not filed a bond ’ with a revenue stamp upon it, nor was there a revenue stamp upon his oath of office.

2d. The constable who served the writ was not a constable, having failed to file a bond and oath of office with revenue stamps thereon.

3d. No order of delivery was issued by the justice.

4th. The execution against Mrs. Miller was returned within thirty days.

5th. Mrs. M. had interest in property belonging to estate of her deceased husband.

6th. The action was not tried at the right time.

7th, No revenue stamp upon the certificate showing when the constable received the wilt.

This motion was sustained, the cause dismissed and judgment rendered against Eeedy for costs. Eeedy thereupon appealed to the District Court. He filed a petition, counting upon the bond and setting out the replevin, the execution of the bond, the judgment, execution and return of “ no goods ” of Mrs. Miller, and asking judgment against her and Gift and Taught, for one hundred dollars and interest, at ten per cent, from June 1st, 1863. This petition was filed Sept. 3d, 1863. On that day a summons was issued which was served on Gift and Taught by the *399Sheriff. On the 3d of October, Gift alid Taught filed an answer setting out the same matters contained in their motion before the justice to dismiss; and on the same day filed a motion to dismiss the appeal on ■ the grounds, 1st. There was no judgment below from which an appeal coiffd lie. 2d. The petition does not state facts sufficient to constitute a cause of action on appeal, and 3d. The transcript of the justice was defective in substance and form. Reedy, Oct. 15th, filed reply denying the allegations of the answer. At the succeeding term of the District Court the appeal Was dismissed and a judgment rendered against the plaintiff for costs, to which plaintiff excepted. This petition in error is brought to reverse that judgment.

"Was the judgment of Justice Manning such an one as could be appealed from %

The plaintiff, had filed a very full bill of particulars. The defendant’s motion set up many things which did not appear upon the face of the papers, any one of which if sufficient for a dismissal, was sufficient as a plea in bar, and could not properly be tried without proof, and if sustained by proof, would be a complete bar to another suit for the same cause of action.

We are bound to presume that the magistrate had sufficient proof to warrant the judgment he rendered. Such being the case, it must necessarily have been a trial upon the merits, no matter what it may have been called. It may have been regarded as á motion to dismiss, but it was in fact and effect a trial of the cause of action, and the judgment, although upon its face a judgment of dismissal, is a judgment upon the merits. It finally disposes of the cause of action set out in the bill of particulars, and would be a complete answer to another suit upon that cause of action.

The second ground for dismissal is equally untenable. The petition may not be a good one; and if it be not this would be no ground for dismissing an appeal. It might *400be a good ground for demurrer, that it did not state facts sufficient to constitute a cause of action, but such never could be a good ground for dismissing an appeal.

The way to obviate the third objection, if -it existed as a matter of fact, was by suggesting a diminution of the record of the justice, and ‘getting an order requiring the magistrate to send up a perfect record of his joroceedings.

Ve thinlc, therefore, that the Court erred in dismissing the appeal. But there is another view of the case which seems to have escaped the observation of Court and counsel. The judgment that was rendered seems to have been regarded as a final disposition of the case. "When the petition was filed, there was, if its allegations be true, a subj sisting right of action.on the bond of which the District Court had original jurisdiction. In legal effect an origin^ al suit had been brought upon that bond; the defendants were in Court by the service of a summons, and had answered, setting up new matter to which there was a reply, ~Was the order of dismissal intended to take this casé with it ? Undoubtedly so, as all parties seem to have regarded the dismissal, not as a dismissal of the appeal alone, but of the whole case. Notwithstanding the judgment, technically considered, the plaintiff had a right to proceed with the case made up by the pleadings. The dismissal of the appeal would not have prevented a judgment in his favor unless pleaded. It was not pleaded.

But the plaintiff has a right to the reversal of the judg•ment of dismissal on the ground that it imposed all the costs of the appeal upon him; and Sec. 526 of the Code as amended, gives us the power to do it.

Judgment reversed.

All the Justices concurring.