36 Kan. 292 | Kan. | 1887
On May 5,1884, John F. Wafer, as sheriff of Harvey county, seized a stock of goods at Newton, worth about $22,000, alleged to belong to R. M. Hamill, upon five several orders of attachment against the property of Hamill, which had been issued to him by the clerk of the district court of his county. On May 8, 1884, the Harvey county bank and R. M. Spivey brought this action against. Wafer to recover possession of these goods, claiming that they had a special ownership therein of the value of fifteen thousand dollars. They predicated their right of possession of the goods upon a chattel mortgage, dated March 20, 1884, to secure a note of $10,000, which mortgage was filed with the register of deeds May 3, 1884; and also by virtue of a pledge of the goods by Hamill to Spivey, to secure $5,000. The stock of goods being taken from Wafer on the order of replevin, he executed to the plaintiffs on May 9, 1884, a redelivery bond, under §182 of the civil code; thereupon, the goods were returned to him. On May 19 following, and before answer to the petition, Wafer moved that the attaching creditors should be substituted as defendants in his stead, and the creditors also at the same time appeared and prayed to be substituted as defendants for Wafer. These several applications were denied on May 20th. On the same day, each of the attaching creditors separately applied to be made a party defendant with Wafer. These applications were also refused. After this, Wafer filed an answer containing a general denial, and the case was tried before the court with a jury. The jury returned a verdict that the bank and Spivey were, at the commencement of the action, entitled to the possession of the stock of goods in controversy, and that the value of their right of possession was ten thousand dollars, on which there was due one thousand and one hundred dollars interest. Wafer filed his motion for a new trial, upon the hearing of which the bank and Spivey offered to remit $2,460 of the value of their right of possession, as found by the jury. This offer was ac
The first error complained of is the refusal of the court to substitute the attaching creditors as defendants, instead of Wafer. Section 45 of the code provides:
“In an action against a sheriff or other officer, for the recovery of property taken under an execution and replevied by the plaintiff in such action, the court may, upon application of the defendant and of the party in whose favor the execution issued, permit the latter to be substituted as the defendant, security for the cost being given.”
It is said that as Wafer held the property under orders of attachment, all the rights of the attaching creditors could have been, and were, as fully protected by him alone as if the attaching creditors had been made defendants; therefore it is urged that the refusal of the court to permit these creditors to become parties defendant could not, and did not, work any harm or disadvantage to them; and the error, if any was committed, was wholly immaterial. We do not think this is the ■case. Wafer had levied upon the stock of goods belonging to Ham ill, under five separate orders of attachment, issued at the instance of five different mercantile firms; the attaching creditors had adverse interests; Wafer could not effectively represent all of these different and conflicting interests; this is well illustrated by what took place among counsel upon the hearing of this case before this court; the counsel representing Messrs. Kahn, Schoenbrunn &Co., attaching creditors, de
By reason of the trial court’s refusal to allow the attaching creditors to defend the action, they were not personally represented in such action; at least, they were not parties thereto ; they ought to have been permitted to defend for their own protection; if they had been parties, they might, perhaps, have defended successfully. This conclusion in no way conflicts with the decision in Tennent v. Battey, 18 Kas. 324. Mr. Justice Brewer, speaking for the court in that case, said, among other things:
“Possession must be preserved, to preserve the attachment lien. . . Therefore, in order to preserve the lien of attaching creditors as a security for the satisfaction of any judgment they may recover, they have the right to defend that lien against third parties claiming the goods, and in that defense they have the right to show any fact that will defeat the claimant’s title. If this were not so, they might, though their claim against the debtor be never so meritorious, be compelled to relinquish their security to one claiming under a title fraudulent as to them.”
As new parties must be made defendants, and another trial is to be had, we do not think it advisable or necessary to comment upon the other alleged errors.
The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.