23 Kan. 532 | Kan. | 1880
The opinion of the court was delivered by
This was an action of replevin brought by Andrew Hinshaw against William T.-Starr before a justice of the peace, to recover twenty-eight head of sheep and lambs. The action was regularly brought and tried, except that the plaintiff did not file any formal bill of particulars. The plaintiff, however, and the justice, treated the plaintiff’s affidavit, upon which the summons and order of delivery was issued, as a bill of particulars. We perceive no error in this. The affidavit contains everything that is necessary to be
There was no tenancy in common in this case. Hinshaw owned all the property. Under the contract between Hinshaw and Stroud, all the property would necessarily remain Hinshaw’s until the end of the three years, and probably until separation and division. But long before the three years had expired, Stroud, in v-iolatiou of said contract, sold the property to Baxter, and Baxter to the defendant, Starr. Under such circumstances, neither Stroud, nor Baxter, nor Starr, could ever become the owner of any portion of the property.
The justice of the peace at first rendered judgment in favor of the plaintiff, and against the defendant, for all the property replevied. Afterward, the justice modified this judgment so as to give to the defendant four of the lambs. And the district court affirmed the judgment of the justice as thus modified. Now whether the modification of the judgment was valid or void, the district court did not err materially as against the defendant, Starr, (plaintiff in error,) by affirming the judgment as thus modified. The modification was for the benefit of the defendant, Starr. But suppose that, the
The judgment of the court below will be affirmed.