Bowling v. Floyd
| Decision Date | 30 April 1897 |
| Citation | 48 P. 875,5 Kan.App. 879 |
| Parties | BOWLING, Sheriff, v. FLOYD. |
| Court | Kansas Court of Appeals |
1. Prima facie, the money coming from a loaner is as much the money of one as the other of two joint makers of a note. But this prima facie presumption may be overcome by evidence.
2. Commercial paper, like other contracts, must be supported by a legal consideration. It is not necessary that the consideration should be one moving to the party himself. A consideration to one of two joint makers is sufficient to bind both.
3. The trial court properly refused an instruction asked by plaintiff in error, where the same, in substance, was already covered by his general instructions. It is sufficient if the jury are instructed as to the various phases of the law called for by the issues and the evidence. The instructions should all be considered and construed together.
4. An objection that the trial court instructed the jury orally and did not sign the instructions, comes too late when made in this court for the first time. Errors, to be available in this court, must in some manner be brought to the attention of the trial court.
5. Where a party fails to attend at the taking of depositions and cross-examine the witness, afterwards, on the hearing of a motion for a new trial, cannot allege as newly-discovered evidence the facts which could have been brought out if he had attended and cross-examined the witness. It is the duty of a litigant in the ordinary exercise of a reasonable diligence to cause a witness to be cross-examined. A litigant cannot ignore a notice of the taking of depositions, and afterwards rely on facts which ought to have been developed on cross-examination as newly-discovered evidence, as a cause for a new trial.
Error from court of common pleas, Wyandotte county; Thomas P. Anderson, Judge.
Replevin by Avaline Floyd against Thomas B. Bowling, sheriff. There was a judgment for plaintiff, and an order denying a new trial, and defendant brings error. Affirmed.
This was an action of replevin brought by Avaline Floyd, defendant in error, against Thomas Bowling, as sheriff, plaintiff in error, to recover the possession of a certain stock of groceries and store fixtures. This property had been taken by Bowling, as sheriff of Wyandotte county, Kan., under attachment processes issued out of the district court of said county in suits against one W. B. Montgall. The petition was an ordinary petition in replevin. Answer was general denial. The jury found the issues in favor of the plaintiff (defendant in error) and against the defendant (plaintiff in error), and found the value of the property in controversy to be $1,331.87½. The defendants filed a motion for a new trial, which motion was afterwards presented to the court and overruled. Defendants excepted, and bring the case to this court for review.
The evidence in this case shows that the defendant in error was a widow, with an only daughter. That on June 7, 1888, the daughter was married to W. B. Montgall. That Montgall was at that time, and had been for some years, in the employ of C. D. Ward, a grocery man in Armourdale. That about June, 1889, Montgall was desirous of starting in the grocery business for himself. Mrs. Floyd told Montgall that she would let him have the money to start in business, if she could borrow it. That Mrs. Floyd entered into correspondence with her brother-in-law, Sylvester Bowser, of Fountain county Ind., which resulted in the loan to her by Bowser of $2,000. She gave her note for this loan, which was also signed by Montgall as surety at her request. The $2,000 was sent to Mrs. Floyd in the form of a draft payable to her order. This draft was indorsed by her, and loaned and delivered to Montgall. That no part of the $2,000 was ever paid to Mrs. Floyd by Montgall prior to February 13, 1891, when Montgall gave Mrs. Floyd a bill of sale of the stock of goods and fixtures in controversy, and she took possession thereof. That before this draft was received by Mrs. Floyd, Montgall bargained for a business of one Kline. Montgall deposited the proceeds of the draft in the bank at Armourdale, and checked the same out in payment for the business and stock he had purchased. That on August 15, 1889, after Mrs. Floyd delivered the draft to Montgall, she requested Montgall to give her his note for the same, which he did. That Montgall continued in business until February 13, 1891. That Mrs. Floyd requested payment of Montgall of her note. The business was going down, and Montgall, having no other means of payment, offered Mrs. Floyd a chattel mortgage on the property in controversy, which she declined to accept. Afterwards she agreed to take a bill of sale for such property. It was in the evening when the papers were completed, and on the next morning (February 13, 1891), about 9 o’clock, Mrs. Floyd took possession of the property, locked and placed a notice of her possession on the door, and went home. The evidence does not disclose that any action had been commenced or threatened by Montgall’s creditors up to this time. About noon on the same day the sheriff went to the store with attachment processes against the property of Montgall, found the doors locked, and notice of Mrs. Floyd’s possession posted on the inside of the window. The sheriff broke the door, levied on and took possession of the stock and fixtures. Mrs. Floyd brought this action of replevin against the sheriff.
Hutchings & Keplinger and McGrew, Watson & Watson, for plaintiff in error.
Getty & Hutchings, for defendant in error.
McELROY, J. (after stating the facts).
We will examine the assignments of error in the order in which they are set out.
1. "The verdict of the jury is contrary to law, the...
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