54 Kan. 380 | Kan. | 1894
The opinion of the court was delivered by
This was an action of replevin, brought by James Varner against T. B. Bowling, to recover the possession of a stock of merchandise of about the value of $1,000. At the commencement of the action an affidavit in replevin was made and an undertaking was executed, upon which an order for the delivery of the property to the plaintiff was issued. Under this order the property was delivered to Varner. The defendant filed an answer, which was a general denial, and the cause was continued from time to time until December 7, 1889, when defendant moved the court to require the plaintiff to give additional security upon his replevin bond, upon the ground that the sureties on the bond had become insolvent since the execution of the bond. When this motion was heard, it was admitted that the security had become entirely insolvent, and the court sustained the motion and allowed 20 days within which the plaintiff might give additional security. The plaintiff declined to give additional security, for the reason that he was unable to do so. When the cause was regularly called for trial, the plaintiff announced himself ready and demanded a trial, but the application was denied, upon the ground that the plaintiff had refused to give additional security as was ordered. Then, upon motion of the defendant, and without a trial, the court gave judgment in favor of the defendant for the recovery of the property mentioned in the petition, or, in default of a return, that the defendant recover the value thereof.
In this ruling there was error. The failure to give the un
The judgment of the district court will be reversed, and the cause remanded for a new trial.