53 Kan. 515 | Kan. | 1894
The opinion of the court was delivered by
This was an action by Otis L. Thisler to
recover from J. J. Miller, then sheriff of Dickinson county, 31 head of cattle, which had been taken upon an execution as the property of M. D. Thisler, to satisfy a judgment which had been obtained against M. D. Thisler. The answer of Miller was that the action was barred, by reason of the fact that a portion of the animals which he had seized upon that execution were taken from him by Otis L. Thisler, in a replevin action brought before a justice of the peace, in which Otis L. Thisler was plaintiff and J. J. Miller was defendant. In that action, Thisler duly recovered a judgment against Miller on account of the same wrong which was complained of in the present case, which judgment was then in full force and effect against the defendant. It was further alleged that, after the rendition of that judgment against the defendant, he appealed the case to the district court, but afterward, upon motion of Miller, the appeal was dismissed, and the judgment of'the justice of the peace remained valid and binding against the plaintiff and the defendant respecting all matters in controversy in the case.
Afterward, a motion for a new trial was filed, based upon the following grounds: (1) Irregularities in the proceedings of the court, by which the plaintiff was prevented from having a fair trial; (2) excessive damages; (3) error in the assessment of the amount of recovery; (4) the verdict was not sustained by sufficient evidence; (5) the verdict is contrary to law; (6) newly-discovered evidence material for the plaintiff, which he could not with reasonable diligence have discovered and produced at the trial; (7) errors of law occurring at the trial and excepted to by the plaintiff. Upon this motion, there
It is said that the plaintiff was misled into making an admission by the conduct of the defendant and of his counsel, but whether or not there was any evidence to sustain the claim is immaterial, as the misconduct of the defendant or his