Boller v. Davis
| Decision Date | 07 December 1946 |
| Docket Number | 36616. |
| Citation | 174 P.2d 1008,162 Kan. 178 |
| Parties | BOLLER et al. v. DAVIS et al. |
| Court | Kansas Supreme Court |
Appeal from District Court, Dickinson County; James P. Coleman Judge.
Action by C. E. Boller and T. P. Quinn against J. E. Davis and C. W Albright to recover on a replevin bond. From a judgment of dismissal on basis of the sustaining of the demurrer of defendant Davis to plaintiffs' opening statement and a judgment on the pleadings and on the opening statement for defendant Albright, plaintiffs appeal.
Reversed.
Syllabus by the Court
1. Where a plaintiff commences an action for the replevin of personal property and files a bond prerequisite to obtaining a writ of replevin, which writ is issued and the property is seized and delivered to the plaintiff, in a later action by the original defendant against him on the bond, he will not be permitted to say that the court in which the replevin action was filed had no jurisdiction and that the bond was a complete nullity and he and his bondsmen have no liability thereon.
2. Where a plaintiff commences an action in replevin, files his bond and has a writ issue which is served, and under which he procures possession of the property, and thereafter the action is dismissed for the reason the court is without jurisdiction, and the plaintiff thereafter does nothing to procure a legal determination of his right to the possession of the property, he has not duly prosecuted the action in replevin and an action will lie upon the bond.
Matt Guilfoyle and John H. Lehman, both of Abilene, for appellants.
W. H Alward, of Herington, for appellee J. E. Davis.
Carey E. Carroll and A. E. Carroll, both of Alma, for appellee C E. Albright.
This was an action on a replevin bond to recover damages. The trial court sustained a demurrer to plaintiffs' opening statement and they appeal.
As two actions are involved, we shall refer to the parties by their surnames. The record as abstracted discloses the following:
On July 19, 1945, Davis filed in the justice of the peace court a replevin affidavit alleging he was the owner of an automatic phonograph and a pinball machine of the actual value of $600 and entitled to the immediate possession thereof, and that the property was wrongfully detained from him by Quinn and Boller. Other statutory allegations were also made. A replevin bond in the sum of $1200, containing the statutory conditions, signed by Davis and Albright was filed, and a replevin summons was issued. Other papers were also filed but we need not mention them. On July 31, 1945, Quinn and Boller appeared specially in the justice of the peace court and moved to dismiss the action because the value of the property replevined as fixed by the replevin affidavit was greater than the amount allowed by alw for the jurisdiction of justices of the peace. The justice of the peace allowed the motion and dismissed the action. Davis did nothing further to establish his right to the property, either by way of appeal or by commencement of any other action.
At a later date, not disclosed by the record, Boller and Quinn commenced an action in the District Court against Davis and Albright. Briefly stated, their petition alleged that Davis had commenced the action in the justice of the peace court and had caused that court to issue an attachment (replevin) order at the commencement of that action and that under that order the constable had taken possession of the automatic phonograph and the pinball machine; that Boller and Quinn were the owners and entitled to the possession thereof and Davis was not entitled to possession; that on July 31, 1945, Boller and Quinn appeared to defend, and the justice of the peace dismissed the action; that Davis did not appeal and failed to return the property to Boller and Quinn and ever since July 19, 1945, had deprived them of possession. Then follow allegations of the execution and filing of the bond in replevin, and the conditions thereof, a copy of the bond being attached as an exhibit. Further allegations as to the value of the property and as to damages sustained are not of present importance.
We note Davis's answer only to state that it alleged he was the owner of the property in question; that he commenced the action in the justice of the peace court and that possession of the property was delivered to him; that Boller and Quinn had appeared specially and the justice of the peace had dismissed the action; that there was no trial of the question of ownership and no request by Boller and Quinn that the court render a judgment requiring a return of the property then in his hands. He made a part of his answer all of the pleadings filed in the justice of the peace court. Davis further alleged that Boller and Quinn had never made any demand for return of the property, and that at no time did they ever have any interest therein which would form a defense to the act on which he commenced; that they had no right of possession and he had done nothing which would make him liable under the bond filed in the justice of the peace court.
Albright filed an answer containing a general denial and an admission that he signed the bond as a surety.
When the cause came on for trial the parties filed a stipulation that the justice of the peace need not be present to identify the records from his court. As a part of their opening statement Boller and Quinn handed to the court the files from the justice of the peace court and stated at length the facts giving rise to the action. At the conclusion of the statement Davis demurred generally and Albright moved for judgment on the pleadings and opening statement. The trial court stated the proceedings before the justice of the peace were void; that they could not be half void and half good; that all were beyond the jurisdiction of a justice of the peace who could not even approve a $1200 bond; that the bond was void and no suit could be maintained upon it, and it sustained Davis's demurrer and Albright's motion for judgment, and dismissed plaintiffs' action. The appeal by Boller and Quinn followed.
It may be noted that the appellees do not contend that appellants, in their opening statement, made any admissions which precluded their recovery. The question presented and argued is whether an action may be maintained on a bond in replevin where the court in which the replevin action was filed had no jurisdiction of the action. In support of the trial court's rulings, appellees direct our attention to a note found in 14 Am.Dec. 103, where the decision in Harris v. Simpson, 4 Litt., Ky., 165 is reported, and to some other similar cases, holding generally that a bond, given a proceeding where the court had no jurisdiction of the action, is a nullity and no action lies for a breach of its condition, and further that a party executing a bond and his surety are entitled to have their contract as evidenced by the bond strictly construed (Citizens' State Bank v. Morse, 60 Kan. 526, 57 P. 115); that appellants caused the action in the justice of the peace court to be dismissed without requesting any order that the involved personal property be returned to them, and that they are now estopped to assert that appellees did not duly prosecute the action in replevin. Appellants assert that the rule relied on by appellees in the trial court and re-asserted here is a minority rule, and they direct our attention to authorities so holding.
The principal case relied upon by appellees is Caffrey v Dudgeon, 1872, 38 Ind. 512, 10 Am.Rep. 126, where it was held that in a replevin action to recover property the claimed value of which was in excess of the court's jurisdiction, the court had no jurisdiction, could not approve the bond, issue the writ or take any action in the premises and that the bond approved by the justice in such a case was void and no action could be maintained. In that opinion it was said: ...
To continue reading
Request your trial
- Medford v. Board of Trustees of Park College
-
Gripe v. Walker
...has proceeded to obtain possession of the property, liability to the owner thereof, if any, is covered by that bond. See Boller v. Davis, 162 Kan. 178, 174 P.2d 1008. Be that as it may, however, it is our opinion that section 1576, supra, does not apply to a case like the present one in suc......