17 Kan. 195 | Kan. | 1876
Lead Opinion
The opinion of the court was delivered by
This was an action of replevin, brought by defendant in error. The defendant (plaintiff in error) gave the required undertaking, and retained possession of the property. Two errors are alleged. The first is, that the court erred in refusing to set aside the order of delivery, because no action was commenced or pending at the time the motion to set aside the order was made. The condition of the case at the time was this: The petition was filed, and a summons and order of delivery were issued at the time. The summons was regular on its face, but the clerk indorsed thereon that the plaintiff claimed $200, and interest thereon. At the first term of court this indorsement was stricken from the summons, as irregular, and unauthorized, on plaintiff’s motion, who thereupon obtained leave for a new summons to issue. ' At this stage of the proceedings the motion to set aside the order of delivery was made, and refused — and we think correctly refused. The first summons was good. It was all that was necessary to bring the defendant into court. How far the indorsement thereon might have affected the extent of plaintiff’s right of recovery, had the defendant re-1 mained in default, we need not inquire. The indorsement, when stricken out,.did not invalidate the summons; nor did the issue of a new summons change the status of the case. The action was pending, because a petition had been filed, and a summons issued thereon.
The other question raised in the case is as to the measure of damages. The action was replevin. The defendant gave bond under §182 of the code, and retained possession of the property. The property consisted of a mule, a mare, a colt, and a set of harness. The jury found for the plaintiff, and found the mule worth $90, the mare $80, the colt $15, and the harness $15, (total, $200.) The colt had strayed away
The judgment of the court below will be affirmed.
Concurrence Opinion
I am unable to concur with my brethren in this case, and will state briefly my views thereon. This was an action of replevin brought by defendant in error to recover the possession of a mare, a colt, a mule, and a set of double harness. The defendant gave a bond and retained the property under §182 of the code. Subsequently the plaintiff obtained possession of the colt, while the defendant retained the mare, the mule, and the harness. The jury found for the plaintiff, and valued the mare at $80, the colt
Where the action is for the conversion of the property, and in the nature of trover, it is unquestioned that the measure of damages is, ordinarily, the value at the time of the conversion and interest. Sedgwick on Measure of Dam. ch. 19, p.474, and cases cited in notes; McDonald v. North, 47 Barb. 530; Forsythe v. Wells, 41 Penn. St. 291; Suydam v. Jenkins, 3 Sand. 614; Single v. Schneider, 30 Wis. 572. And I think
I have confined myself in the consideration of this question to those cases in which the successful party bases his claim upon a full title. Where there is only a special and limited ownership, other considerations may affect and modify this rule. The opinion of the Chief 'Justice places some stress on the poverty of the plaintiff, his inability in consequence of that poverty to purchase another team, and the apparent malice of the defendant. But surely these matters are entirely extrinsic. True, where special damages are alleged, they may be recovered. Where malice is alleged, exemplary damage may be recovered. But here, neither is alleged; and the rule laid down must apply to a case exactly the reverse, and where the plaintiff is wealthy, or has many teams, and the only malice apparent is in his own conduct. It must be the universal rule in all cases where the property has what is called'a “usable value,” no matter what the circumstances or conduct of either party. If the defendant had killed the animals instead of taking possession of them, there can be no question but that the value and interest would have been the measure of damages. Has the plaintiff suffered any more injury by the defendant’s taking possession of them? It seems to me that the rule laid down by my brethren will result in just such outrages as in my judgment is the verdict in this case.
[*The rule laid down by the majority of the court, determining the measure of damages in replevin, is adhered to in the subsequent cases of Ladd v. Brewer post pp. 204, 209, and Bell v. Campbell, post, pp. 211, 212,]