31 Kan. 227 | Kan. | 1884
The opinion of the court was delivered by
The defendant in error (plaintiff below) filed his petition in the district court of Crawford county, alleging, inter alia, that on the 24th of January, 1883, he was the owner of and in exclusive possession of a brick store building of the value of $5,000, and of the rental value of $80 per month, situate in Girard, Crawford county, in this state; that he owned and had therein a general stock of merchandise of the value of $12,000, and also a safe of the value of $225; that on said 24th day of January, the defendants (plaintiffs in error) without right or authority and against his will and consent, entered the store-room in his brick building and took forcible possession of the premises, and then and there wholly deprived him of the same, and then and there converted all of said merchandise, together with the said safe, to their own use and benefit.
The answer to the petition contained a general denial, and also set forth that the property taken was not the property of the plaintiff below, but the property of one Curtis, against whom Adler & Sons, of Milwaukee, Wisconsin, had a large
To this, the plaintiff below filed a reply containing a general denial. Subsequent to the filing of the reply, the circuit court discharged the order of attachment issued against Curtis, upon the ground that the alleged causes therefor were untrue. Thereafter, with the leave of the court, the defendant below filed a supplemental or amended reply setting up the dissolution of the attachment proceedings. A demurrer was filed to this reply, which was overruled. Then the defendants, with leave of the court, amended their answer, and also filed a supplemental answer to the plaintiff’s amended reply, denying generally the averments thereof, and alleging that the case of Adler & Sons against Curtis was still pending in the United States circuit court and undetermined.
I. It is alleged that the court erred in allowing the amended or supplemental reply to be filed, and in not sustaining the demurrer thereto. We think otherwise. The answer to the petition set up the attachment proceedings which were issued out of the United States circuit court as a justification of the trespasses charged against the defendants below, and alleged that all the acts done by them were done under color of law and official authority. Section 144 of the code expressly authorizes that either party to the action may be allowed, on notice, and on such terms as to costs as the court may prescribe, to file a supplemental petition or reply alleging facts material to the case occurring after the former petition, answer, or
II. It is next asserted that the trial court erred in refusing to permit the defendants in the court below to question the bona fides of plaintiff’s title to the property seized under the order of attachment. Officers holding possession of property finder writs of attachment have the right to defend the possession of the property, and in such a proceeding the bona fides of the debtor’s acts in transferring the property to a plaintiff may be inquired into; but in this case the order of attachment was wrongfully obtained. Before the trial the attachment was discharged. This discharge vacated all the attachment proceedings ab initio. Thereafter the officers had no special title in or to the property seized by them; they had no judgment, or execution, or any valid process under which they could justify their possession. Therefore they were not in any position to question the bona fides of plaintiff’s title. Even a creditor cannot attack an assignment or transfer as fraudulent unless he has first placed himself in such a position that the assignment or transfer interferes with the assertion of his right to the particular property in question. (Hastings v. Belknap, 1 Denio, 190; Andrews v. Durant, 18 N. Y. 496; Bump on Fraudulent Conveyances, 2d ed., 515, 516. See also Tennent v. Battey, 18 Kas. 324.)
III. It is finally contended that the court erred in holding the defendants below liable for the value of a safe. This
Several other questions are discussed in the briefs filed, but in view of the suggestion of counsel for plaintiffs in error that it would be manifestly futile to retry the case unless they have the right to impeach the bona fides of the sale from Curtis, we think it unnecessary to make other comments.
The judgment of the district court must be affirmed.