12 Kan. 579 | Kan. | 1874
The opinion of the court was delivered by
The first question presented in this case is as to the sufficiency of the petition in the court below. This question was raised by demurrer, by objecting to the introduction of any evidence under said petition, and by motion in arrest of judgment. The petition stated substantially that Kimberlin owned and had the possession and the right of possession of certain cattle; that the title and the right of possession, however, to them was in dispute between said Kimberlin and one David Auld and one George W. Taylor; that an action of replevin was pending in Brown county between said Kimberlin and Auld & Taylor, in which Kimberlin was plaintiff and Auld & Taylor were defendants,
“Whereas, the undersigned bought of H. V. Kimberlin among other cattle, forty head of work oxen which are claimed by David Auld, and about the title to which cattle there is now litigation between said Auld and said Kimberlin, and which said cattle said Auld has caused to be taken from the undersigned, and which said cattle are now of the value of twenty-six hundred and,fifty dollars: therefore, now in consideration that said Kimberlin has furnished us the full sum' of twenty-six hundred dollars on account of the said premises, we agree to-pay the said Kimberlin the said sum of twenty-six hundred dollars so soon as he shall sustain his right and title to sell said cattle to us, or on our behalf, together with so much of the damages so récovered as shall pay to Kimberlin the interest upon the said money, and the expensé of sustaining his said right and title.
“Dated, June 14th, 1867. T. E. Simpson.
D. Carmichael.”
“Done in presence of W. W. Guthrie.”
The next question arises upon the defendant’s motion to strike out the fifth clause of the plaintiff’s reply, and upon the defendant’s demurrer to said clause. This clause of the reply was intended to be responsive to the third defense of Carmichael’s answer, and to the fourth defense of Simpson’s answer. Now if these defenses stated no defense to the plaintiff’s petition, then we suppose said clause of the reply was a sufficient reply to them, whatever it may have contained, and the court could not have committed any substantial error by overruling said motion and said demurrer. Now we think that said defenses did not state any defense. They stated in substance that Simpson and Carmichael did prosecute their said action against Auld & Taylor to judgment. But they failed to state what the amount of the judgment was, or that Simpson and Carmichael ever attempted to collect the same, or that they ever did anything further in the premises. Simply obtaining a judgment, we think was no defense. Stopping anywhere short of actually
■We do not think that it is necessary to discuss the-instructions, for we have already discussed all the substantial legal questions involved in the case. Those given embodied the law of the case, and those refused were refused because they did not embody the law of the case, or because they were given substantially in some of the 'other instructions. The instructions were fully as favorable to the defendants as to the plaintiff. The instructions were such that it was wholly impossible for the jury to find the verdict that they did find upon any other theory than that the defendants Simpson and Carmichael did not prosecute their said action against Auld & Taylor in good faith. And as the evidence is not all brought to this court we must presume'that the verdict was sustained by sufficient evidence. It is claimed that the court did not charge the jury correctly with regard to the measure of damages. Now upon the theoxy that the plaintiff was entitled to some damages, and upon the theory that the judgment rendered in favor of the defendants and against Auld & Taylor for $698, was not
In answer to some other questions attempted to be raised by plaintiffs in error we would say: First, the Brown county judgment determined specifically that Kimberlin was the owner of said cattle at the commencement of that suit, and there was not a particle of evidence in this case tending to show that Kimberlin ever sold the cattle to Auld & Taylor, or to any other person except to Simpson and Carmichael. Second, no judgment could have been rendered in the case of Simpáon and Carmichael against Auld & Taylor except upon the theory that said cattle, or some portion of them, belonged to Simpson and Carmichael at the time they were taken by Auld & Taylor from Simpson and Carmichael; for the issues were so framed that title to the cattle was the main issue in the case upon which all the other issues depended. Third, Auld & Taylor had no right to show in the case of Simpson and Carmichael against Auld & Taylor that the Brown county judgment was obtained through fraud; for as we have before said, a judgment is valid, binding and conclusive upon all parties and privies until reversed, vacated, set aside or enjoined in a direct proceeding instituted for that
The judgment of the court below is affirmed.