58 P. 1028 | Kan. Ct. App. | 1899
The opinion of the court was delivered by
This is an action of replevin brought by the plaintiff in error against Davis as constable to recover the possession of a phaeton which Davis held by virtue of the levy of an execution against one McClurg, upon a judgment' against him in favor of the National Bank of Commerce.
Talbott claimed a special ownership by reason of a sale note which he recorded in the office of the register of deeds, of Reno county at eleven o’clock a. m. on the day the levy was made. The testimony of the plaintiff shows that Davis came to McClurg’s barn
The Bank of Commerce filed an interplea and was by the court made a party defendant. Upon the trial, the court sustained a demurrer to the evidence of the plaintiff and he brings the case here for review.
No petition in error is filed against the National Bank of Commerce, the interpleader, as the real party in interest and a necessary party in this court. The defendant named in the petition in error is “ S. V. Davis, constable.” A petition in error with the case-made or transcript attached is a prerequisite to our jurisdiction, and because of the failure to bring the action against the necessary parties the case must be dismissed.
No motion to dismiss has been filed, but, the omission being jurisdictional, it is our duty to raise the question without a motion.
The petition in error is dismissed.