Russell v. Smith

14 Kan. 366 | Kan. | 1875

The opinion of the court was delivered by

Valentine, J.:

This was an action of replevin for 422 head of cattle. Judgment was rendered in favor of the plaintiffs below, (defendants in error.) The plaintiff in error claims that on the pleadings, with or without a trial, the judgment below should have been rendered in his favor; and this he does on the ground that he set up new matter in his answer constituting a complete defense to the plaintiffs’ action, to which answer the plaintiffs did not reply. No such question as this was raised in the court below, but the trial there proceeded in all respects as though the new matter set up in the defendant’s answer was. duly controverted. Two questions are really involved in this question: first, was a reply necessary? second, if so, did not the defendant waive the reply by going to trial without it, and by not in any manner raising the question of its necessity in the court below? Both of these questions have been answered in the case of Wilson v. Fuller, 9 Kas., 177, 189, et seq. We adhere to that decision. A reply was not necessary in this case. And if it had been the defendant below waived it.

All of said cattle except three head belonged to the plaintiffs below as copartners. These three head belonged to another copartnership consisting of Orson Smith (one of the plaintiffs below) and one Tappan. The only interest that the defendant below ever had in any of said cattle was an interest which he obtained as sheriff of Saline county by attaching said cattle as the property of said Tappan. If Tappan had owned said cattle, and there had been no liens in favor of the plaintiffs, or either of them, existing against the cattle, the judgment in this case should have been in favor of the defendant below. But as Tappan had no interest in any of the cattle, except said three head, the defendant below, as plaintiff in error, now sets up other grounds than that of ownership or the right of possession on the part of Tappan as a foundation for his (plaintiff in error) supposed right of recovery. He claims that he should recover judgment for the whole of said cattle. He claims that he may recover upon the following grounds: As Tappan had an interest in said three head .of cattle, he claims that he as sheriff of said county had a right to attach them and hold them for the satisfaction of Tappan’s debts; ■ and as these three head of cattle were kept and herded with the other 419 head which belonged to the plaintiffs below, and as said Orson Smith neglected and refused to point out the interest of Tap-pan in said cattle, he claims that he as sheriff had a right to attach the whole of said herd, and hold them for the satisfaction of Tappan’s debts. Had the sheriff, by virtue of the writ of attachment which he held against the property of Tappan, a right to take possession of said three head of cattle, and to hold them for the payment of Tappan’s debts? We think not. Orson Smith not only had his partnership interest in said three head of cattle, but he and his brother (the other plaintiff below) had other interests in said cattle. The firm of Smith & Tappan owed the firm of Smith Brothers for keeping said three head of cattle and other cattle belonging to Smith & Tappan during the fall, winter and spring, before said attachment was levied upon said cattle. And for thus keeping said cattlg said Smith Brothers had a lien upon the cattle, (Gen. Stat., 548, § 2,) which lien neither Tappan nor Tappan’s creditors could divest except by paying the amount due for keeping said cattle. (See Drake on Attachment, § 245.) Also, Orson Smith by agreement with Tappan and with certain of Tappan’s creditors assumed the payment of certain debts, which Tappan owed to said creditors, and Smith was to retain enough out of the proceeds of the sale of said cattle to pay himself therefor. This constituted another lien on said 'cattle. Orson Smith had the actual custody, care and control of said cattle. His possession however we suppose was the possession of the Smith Brothers, and neither Tappan, nor Tappan’s creditors, nor the sheriff acting for Tappan’s creditors, had any right to disturb that possession until all of said claims against Tappan were paid. Whether either would then have any right to disturb Orson Smith’s possession, we do not decide. There would still be the partnership interest of Orson Smith. This partnership interest alone might be sufficient to prevent the sheriff from taking possession of the cattle. The above claims were really charges upon said cattle in favor of Orson Smith, and of the Smith Brothers. When the sheriff inquired of Orson Smith what interest Tappan had in said cattle, the cattle were eight miles away, and of course Smith could not point them out or designate them. And Smith told the sheriff that he could not tell what interest Tappan had in the cattle without consulting his books. And there is nothing in the case which tends to show that this was not true. It does not appear from the record what precise interest Tappan had in said cattle, nor does it appear that Smith then knew or has at any time since known Tappan’s precise interest in the cattle. It appears that Smith could have known what said interest was by examining his books, but he refused to do so, or to tell what the interest was. We do not think that this refusal authorized the sheriff to attach said cattle and take them from the custody of Smith. (In this connection see Treat v. Barber, 7 Conn., 275; Holbrook v. Hyde, 1 Vt., 286; 47 N. H., 502; 28 Maine, 429.) The creditors of Tappan had another and an ample remedy by a proceeding of garnishment. (Gen. Stat., 666, § 200, et seq.)

We suppose it is hardly necessary for us to say that if the sheriff had no right to take possession of said three head of cattle under his writ of attachment, he had no right to consider that the Smith Brothers forfeited their whole herd simply because Orson Smith refused to point out to the sheriff Tappan’s interest in said three head of cattle. The three head were differently branded from the others, and could easily have been pointed out to the sheriff by the herder, if the sheriff had inquired of the herder.

The damages allowed by the court were not excessive, nor speculative. The court allowed damages for a decrease in the market value of the cattle during the time that they were wrongfully detained by the defendant from the plaintiffs. This was right. (Young v. Willett, 8 Bosw., 486; Rowley v. Gibbs, 14 Johns., 385; Allen v. Fox, 51 N. Y., 565; Beveridge v. Welch, 7 Wis., 465; Gordon v. Jenney, 16 Mass., 470.) There was evidence however tending to show that the damage was much more than the court allowed.

The judgment of court below is affirmed.

All the Justices concurring.