12 P. 526 (Kan. 1887), Souders v. Voorhees

Citation:12 P. 526, 36 Kan. 138
Opinion Judge:JOHNSTON, J.:
Attorney:A. E. Park, and Brownell & Gregg, for plaintiff in error. Mann & Patterson, for defendant in error.
Judge Panel:JOHNSTON, J. All the Justices concurring.
Case Date:January 01, 1887
Court:Supreme Court of Kansas

Page 526

12 P. 526 (Kan. 1887)

36 Kan. 138




Supreme Court of Kansas

January 1, 1887

Page 527

Error from Marshall District Court.

ACTION brought by W. L. Souders before a justice of the peace, to recover the possession of a quantity of corn which he claimed by virtue of a chattel-mortgage lien, and which had been levied on and taken possession of by Jacob R. Voorhees, as sheriff, under an execution and attachment. The trial resulted in favor of the plaintiff. The defendant appealed the case to the district court, where it was tried by the court at the August Term, 1884, upon an agreed statement of facts, which were as follows:

"1. This action was commenced November 7, 1883, before J. M. Shumate, justice of the peace, and is regularly in this court on appeal from the judgment of said justice.

"2. The defendant was, at the time of the commencement of this action, and for a long time previous, the sheriff of Marshall county; and as such sheriff, he had, before the commencement of this action, levied an execution and an attachment on all the corn growing and standing on the west one-half of section 36, township 3 south, range 8 east, in said county, except fifteen acres thereof off the west end of the piece on the southwest quarter of said section, south of the house, and was holding the same under and by virtue of said writ when this action was commenced.

"3. All the corn standing and growing on said half-section of land at the time of the levy of said writs was the property of one Thomas Burnside and in his possession; and the corn so levied on was levied on as the property of the said Thos. Burnside.

"4. At the time the defendant so levied on said corn, and at the time of the commencement of this action, the said Thomas Burnside was owing the plaintiff the full amount of principal and accrued interest on his note, of which the following is a copy, (said note heretofore set up in this made case, and marked 'A.')

"5. At the date of said note, said Thomas Burnside gave plaintiff a chattel mortgage to secure the same, which was regularly filed in the office of the register of deeds of said county, September 19, 1883, and before said corn was levied on by defendant, all parties having notice thereof. The following is a copy of said chattel mortgage, (which has been heretofore described in this made case, marked 'B,' and made a part hereof.)

"6. At the time said...

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