Turner v. Reese
22 Kan. 319
Kan.
1879
Check Treatment

The opinion of the court was delivered by

Horton, C. J.:

Upon the trial of this case, the plaintiff in error offered in evidence the papers in case No. 26, of Reese v. Turner & Otis, then pending in said court; ■ and thereupon said Reese admitted that said actions Nos. 26 and 86 wei’e both between the same parties plaintiff and defendant, and for the identical property, and that the action commenced January 15th, 1876, was then still undetermined; that at the time of the commencement of said action of June 9th, 1876, said Turner & Otis were in the possession of said property, and that said actions were both brought and are still pending in the same court; and thereafter the court proceeded to hear and determine whether the said Reese was •entitled to the possession of the corn under the prior chattel mortgage executed to him by said B. Grubb, on November 18th, 1875, and upon the evidence, decided adversely to said plaintiffs in error, and in favor of said defendant in error. All of this was erroneous. If we consider that action No. 26 was another action for the same cause between the same parties, in the same court, then, being the prior action and still pending, the pendency of such action was a complete bar to the prosecution of this suit. This being the subsequent suit (having been commenced on June 9th, 1876, and the former action having been commenced on January 9th, 1876), it ought to have been abated. If it be contended, however, that this action was for trial the same as if the sheriff had continued the only defendant, and that the substitution of Turner & *322Otis in the place of the officer did not vary or change the-issues or the rights of said Reese, still, under his admissions,, he was not entitled to recover. At the time of the commencement of said action, Turner & Otis, and not the sheriff, were in the possession of the property, and had control of it. On January 17th, 1876, Turner & Otis had executed a redelivery bond to said Reese in said action No. 26. Under our statutes,, the title to the property in dispute, after the acceptance of such undertaking, during the litigation, remained the same as it was before in every respect, except that Otis and those-holding under him obtained the right of possession, with such a special right of property, that they could have maintained replevin for the property against anyone who should disturb-their possession. (Kayser v. Bauer, 5 Kas. 202.)

The admission of the defendant in error of the possession of the property by plaintiffs in error at the commencement of the second suit, is conclusive against him. We must consider this part of the case in that light. As Turner & Otis-continued to retain the property, and as their possession and detention were not wrongful or unlawful against the defendant in error, the latter had no cause of action against any one-in this case. In the absence of any wrongful detention on the part of a defendant against a plaintiff, no cause of action-exists.

The judgment of the district court must be reversed.

All the Justices concurring.