Ablah v. Eyman

• Court: Kansas Supreme Court
• Writing for the Court: ROBB
• Citation: Ablah v. Eyman, 352 P.2d 10, 186 Kan. 626 (Kan. 1960)
• Decision Date: 14 May 1960
• Docket Number: No. 41793,41793
• Parties: Frank J. ABLAH et al., Appellants, v. Ray H. EYMAN, Appellee.

Page 10

352 P.2d 10

186 Kan. 626

Frank J. ABLAH et al., Appellants, v. Ray H. EYMAN, Appellee.

No. 41793.

Supreme Court of Kansas.

May 14, 1960.

Syllabus by the Court.

In a replevin action where plaintiffs' affidavit and bond were properly filed pursuant to statutory requirements but defendant did not file a redelivery bond and the trial court, under circumstances narrated in the opinion, ordered the sheriff to hold all papers until further order of the court, it is held, the trial court had no jurisdiction to so order the sheriff, and the order is reversed, set aside, and held for naught.

Milton Zacharias, Wichita, argued the cause, and Kenneth H. Hiebsch, Richard A. Render, Albert L. Kamas, Donald E. Lambdin, and David G. Arst, Wichita, were with him on the briefs for the appellants.

No appearance for appellee.

ROBB, Justice.

The plaintiffs, Frank J. Ablah, and others, commenced a replevin action under G.S.1949, 60-1001 to recover immediate possession of certain books and records by filing the required statutory affidavit (G.S.1949, 60-1002) and bond (G.S.1949, 60-1003).

Defendant did not proceed properly or legally by posting a redelivery bond as required by G.S.1949, 60-1007 which reads:

'If, within twenty-four hours after service of the copy of the order, there is executed by one or more sufficient sureties of the defendant, to be approved by the sheriff, an undertaking to the plaintiff, in not less than double the amount of the value of the property as stated in the affidavit of the plaintiff, to the effect that the defendant will deliver the property to the plaintiff, if such delivery be adjudged, and will pay all costs and damages that may be awarded against him, the sheriff shall return the property to the defendant. If such undertaking be not given within twenty-four hours after service of the...