Tootle, Hosea & Co. v. Berkley

57 Kan. 111 | Kan. | 1896

The opinion of the court was delivered by

Allen, J. :

1. Contracts of general demurrer. The first ground of error discussed in the brief is in overruling the demurrer to the petition. It is true that the petition is very indefinite in its averments, but it is not so indefinite as the so-called demurrer, for this fails to challenge the sufficiency of the petition on any particular ground. It raised no question to be passed upon by the court. We find nothing substantial in the complaint made of the rulings of the court on the admission and rejection of testimony. The evidence before the court was practically the same as that on which this court held the plaintiff to be entitled to recover when the case was here before. It is therefore unnecessary to consider its sufficiency.

2. Substituted dependants jointly liable. It is insisted that the court erred in rendering a general judgment against all of the defendants jointly for the value of the entire stock of goods. Attention is called to the appraisements made in the different actions — the largest amount stated in any one appraisement being that in the case of M. D. Wells & Co., in which the attached property was valued at $340. It is insisted that if the defendants were liable at all they were liable sever-ally for the amount or goods attached m the actions brought by them respectively, and not jointly for the whole stock. The plaintiffs in error rely on the appraisements to show what goods were attached in each action. On examination, we find that the only description of the property taken is “Boots and shoes.” There is nothing whatever to indicate numbers or quantity except the valuation made by the appraisers. But independently of the defect in the proof to sustain the position of the plaintiffs in error, we think there was but one action, and that a single judgment was properly rendered against all of the defendants. When the case was originally brought the sheriff bad seized under various writs, none of which ran against the plaintiff, a stock of merchandise on which she had a valid chattel mortgage, and of which she was then entitled to the possession. She had a single cause of action against the sheriff for this property. The defendants of their own volition took the place of the sheriff as defendants. Just what they did with the property is not shown, nor is it important. The plaintiff was deprived of it by the action of the sheriff. When the defendants were substituted they took the place of the sheriff in the suit, and undertook to defend his possession of the entire stock; They had no right to divide up the suit pending between the plaintiff and the sheriff, and convert it into a number of suits against each of them separately. It still continued a single demand, and at the conclusion of the trial a single judgment against all of the parties who had voluntarily shouldered the sheriff’s load was proper.

Complaint is made because the individual names of the members of the various firms are stated in the judgment, and because they are all made jointly liable. It is conceded that there is nothing in the pleadings to indicate who the members of the firm of Tootle, ITosea & Co. are, and that the petition names no one as defendants except “Tootle, Hosea & Company et cd.” The record before us is very defective in many particulars, but we think it fairly shows that all these different firms voluntarily came into the case as defendants, and if so, of course the members of the firms were individually liable.

The judgment is affirmed.

All the Justices concurring.