Ament v. Lowenthall

• Decision Date: 09 February 1894
• Citation: 35 P. 804,52 Kan. 706
• Parties: C. W. AMENT v. LOTTIE G. LOWENTHALL
• Court: Kansas Supreme Court

35 P. 804

52 Kan. 706

C. W. AMENT v. LOTTIE G. LOWENTHALL

Supreme Court of Kansas

February 9, 1894

Error from Shawnee District Court.

ACTION for conversion. December 12, 1889, plaintiff, Lowenthall, had judgment, and defendant, Ament, comes here. The opinion states the facts.

Judgment reversed and a new trial awarded.

Waters & Waters, for plaintiff in error.

S. B Isenhart, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

Mrs Lottie G. Lowenthall brought her action against C. W. Ament for the unlawful conversion of certain personal property, and recovered judgment against him for $ 894.75, which judgment is sought to be reversed. Ament loaned money to the husband of Mrs. Lowenthall, who stated he was the owner of the goods, and Ament held the same under a chattel mortgage executed by the husband. The goods belonged to Mrs. Lowenthall, and the mortgage was executed by her husband without her knowledge or consent.

The serious trouble in the case is over the statute of limitations. The jury found specially that the cause of action accrued to the plaintiff, Mrs. Lowenthall, in February, 1885. The petition was filed December 8, 1886, but the only service on the defendant was made on March 28, 1887, more than two years after the action accrued to the plaintiff, according to the special finding of the jury. It is true that the jury also found that the summons was served on March 26, 1886, but this is contrary to all of the evidence. It is admitted that the petition was not filed until December 8, 1886, and, therefore, the summons could not have been served in March, 1886, about 10 months prior to the filing of the petition. But as the evidence shows the service of summons was made on March 28, 1887, this, in the absence of any other evidence to the contrary, is conclusive. A civil action is not commenced by merely filing the petition, but a summons must be issued thereon and be served as prescribed by the statute. The petition alleged the conversion, as follows:

"All of which said goods and chattels, afterward and on the day of , A. D. 1885, came into the unlawful possession of said defendant, and the said defendant, contriving to injure said plaintiff, did, afterwards, on the said day of A. D. 1885, unlawfully and wrongfully convert the said goods and s, chattels, of the value of $ 2,500, to his own use and benefit."

At the proper time, Ament moved the court to require the plaintiff to state when he unlawfully and wrongfully converted the goods to his own use. The court overruled the motion and he excepted. After the plaintiff below had offered her evidence, the defendant demurred thereto. This was overruled by the trial court. Thereupon the defendant asked leave to file an amended or supplemental answer pleading the two-years statute of limitations. (Civil Code, § 18, subdiv. 3.) This was overruled, and the defendant excepted.

Although the court refused to allow the plea of the statute of limitations to be filed, yet during the trial there was evidence offered by both the parties as to whether the action was barred or not. The plaintiff, in representing her case to the jury,...