Bush v. Collins

• Decision Date: 09 July 1886
• Parties: H. E. BUSH, as Sheriff of Shawnee County, v. CHARLES COLLINS
• Court: Kansas Supreme Court

11 P. 425

35 Kan. 535

H. E. BUSH, as Sheriff of Shawnee County, v. CHARLES COLLINS

Supreme Court of Kansas

July 9, 1886

Error from Wyandotte District Court.

ACTION brought February 21, 1883, by Charles Collins against H. E Bush, as sheriff of the county of Shawnee. The petition is in words and figures as follows, (omitting court, title, and exhibit:)

"1. The plaintiff, Charles Collins, complains of the defendant H. E. Bush, sheriff of Shawnee county, of the state of Kansas, and for cause of action against the defendant says That the plaintiff is now, and was at all the time hereinafter complained of, a citizen of the state of Kansas that the defendant is now, and was at all times hereinafter complained of, a citizen of the state of Kansas, and duly elected, qualified and acting sheriff of the county of Shawnee, in said State of Kansas; and in all the matters hereinafter stated and complained of against him, acted in the capacity of sheriff of the county of Shawnee, in the State of Kansas.

"On the 7th day of October, 1882, and for a long time prior thereto, the plaintiff was the owner of, and in the actual possession thereof, of a large and valuable stock of merchandise in the city of Topeka, in the county of Shawnee and state of Kansas, consisting of groceries, clothing, furnishing goods, hats and caps, outfitting store, and other merchandise, of the aggregate value of twenty-five thousand dollars, and which stock of merchandise is more particularly and in detail described, with the separate value of each item thereof opposite thereto, in a certain schedule hereto attached, marked 'Schedule A,' and made a part of this petition.

"On the day last aforesaid, the defendant, H. E. Bush, sheriff of the county of Shawnee, in the state of Kansas, and in his capacity of said sheriff, wrongfully and tortiously seized and took into his possession and from the possession of the plaintiff, and at the county of Shawnee aforesaid, the entire stock of merchandise hereinbefore mentioned, and every item thereof embraced and stated in said schedule A, to his own use.

"On the date aforesaid the plaintiff demanded of and from the defendant the return to him of said entire stock of merchandise and each and every part thereof, and the plaintiff avers and charges the same to be true that although the defendant then and before that time well knew that the plaintiff was the owner thereof, and was actually in the quiet and peaceable possession thereof before the unlawful taking hereinbefore stated, and was lawfully entitled to the possession thereof after the taking of the same aforesaid, the defendant upon said demand and at all times thereafter refused and still refuses to return said stock of merchandise or any part thereof, to the damage of plaintiff in the sum of twenty-five thousand dollars, with interest thereon from the 7th day of October, 1882.

"Wherefore, the plaintiff asks judgment against the defendant, H. E. Bush, sheriff of the county of Shawnee, in the state of Kansas, for the sum of twenty-five thousand dollars and interest thereon at 7 per cent. per annum from October 7, 1882, and costs of suit."

On March 23, 1883, the defendant filed the following answer, (omitting court and title:)

"And now comes the defendant, and for answer to the petition of plaintiff, denies each and every allegation in said petition contained.

"2d. And for a second offense, the defendant alleges that at the time of the alleged taking of said goods and chattels in said petition mentioned, the defendant was the sheriff of the county of Shawnee, in the state of Kansas, and that said goods and chattels were the property of A. D. McMillan and Wm. McMillan & Co.; that at that time various and several writs of attachment had been issued from the office of the clerk of the district court of said county at the action of and in suits brought by the McCord & Nave Mercantile Company, a corporation organized under the laws of the state of Missouri, the Gauss-Hunicke Hat Company, a corporation organized under the laws of the state of Missouri, and Isaac Weill, Isadore Weill, and A. Steinaker & Co.; and also in suits and actions brought in said court by others against the said A. D. McMillan & Co., and against the property of said A. D. McMillan & Co., and duly delivered to defendant as such sheriff; and if defendant took the said goods and chattels, he took them as sheriff as aforesaid, and by virtue of said several writs of attachment, as he might and ought rightfully to do; and that if the plaintiff claims said goods and chattels, he claims under a pretended sale from A. D. McMillan & Co.; but that such pretended sale, if any was made, was a fraudulent one and void, and made with the intent to defraud the creditors of the said A. D. McMillan & Co., and especially the plaintiffs in the attachment suits above mentioned. Wherefore, defendant prays judgment."

On April 11, 1883, the plaintiff filed a reply, denying each and every material allegation contained in the answer. On August 4, 1883, upon the application of the plaintiff, the place of the trial of the action was changed from the district court of Shawnee county, and by consent of all the parties sent to the district court of Wyandotte county for trial. Trial had at the July Term of court for 1884, before a jury. The jury returned a verdict for the plaintiff, and assessed his damages at $ 9,000. The defendant filed his motion for a new trial, which (omitting court and title) is as follows:

"Comes now the defendant, and moves the court here to set aside the verdict herein and grant a new trial, because of--

"1. Error of law occurring at the trial and excepted to by the defendant.

"2. The verdict is not sustained by sufficient evidence, is contrary to the evidence and is contrary to law.

"3. Misconduct of the prevailing party, the plaintiff, where attorney upon the trial of said cause indulged in improper and abusive language respecting the counsel for defendant, commenting upon matters not in evidence, and making statements to the jury respecting the same which are not true.

"4. Error of the court upon the trial in refusing each and every of the special instructions prayed for by the defendant.

"5. Error of the court upon the trial in each and every of the instructions given to the jury.

"6. Misconduct of the jury.

"7. Accident and surprise which ordinary prudence could not have guarded against.

"8. The court erred upon the trial in overruling the objections of the defendant to the introduction of evidence offered by the plaintiff.

"9. The court erred upon the trial in sustaining the objections of the plaintiff to evidence offered by defendant."

This motion was overruled, and judgment entered upon the verdict in favor of the plaintiff and against the defendant for the sum of $ 9,000, together with all costs, taxed at $ 160.70. The defendant excepted to the rulings and judgment of the court, and brings the case here.

Reversed.

Case & Moss, Rossington, Smith & Dallas, Nathan Cree, W. P. Douthitt, and J. D. McFarland, for plaintiff in error.

J. S. Ensminger, Frank Herald, and Waters & Chase, for defendant in error.

HORTON, C.J. VALENTINE, J., concurring.

OPINION

HORTON, C. J.:

The facts in this case, not contradicted, are as follows: A. D McMillan and William Quigley, under the firm-name of A. D. McMillan & Co., opened a wholesale store in North Topeka, in this state, in August, 1882, for the sale of groceries, boots and shoes, hats and caps, and clothing. They continued in business until October 7, 1882, paying for only a few of the goods they bought, and owing for nearly all of them. On October 7, McMillan, for the purpose of defrauding the creditors of A. D. McMillan & Co., sold all of their goods in lump, without invoice, to Charles Collins, through his agent, William H. Frease, for $ 7,500. At the time of purchasing, Frease did not inquire of A. D. McMillan whether the firm owed anything, and asked nothing whatever about their financial condition. At this time A. D. McMillan & Co. were indebted to their creditors for goods purchased, over $ 18,000. The stock sold by McMillan to Collins on October 7th was worth about $ 12,000, although some of the estimates of the value of the stock at the time of the sale were as high as $ 15,000 to $ 18,000. Collins is a cattle dealer, residing in Reno county, in this state, and a man of considerable wealth. At the time of the purchase he had $ 20,000 on deposit in one of the banks of his county. On and prior to October 7, William H. Frease was employed by Collins as general manager of a store owned by him at Nickerson, in this state. The store carried a stock of about $ 6,000 of general merchandise. On October 6, 1882, Frease received a telegram from A. D. McMillan to come to Topeka. He arrived there at three o'clock on the morning of October 7th, and met McMillan at the Gordon House. After breakfast he went over to North Topeka with McMillan, and bought for Collins all the goods in the store for $ 7,500. The bargain was concluded about eleven o'clock A. M., McMillan accepting in payment of the stock the note of Charles Collins, executed by Frease, for $ 7,500, due in sixty days. Frease paid $ 200 to McMillan on the note. He took possession of the goods about noon of October 7th--Saturday--and immediately procured teams, engaged cars, and began to ship the goods out of the store to the depot, to be hauled off, and was so engaged when the attachments of the creditors of A. D. McMillan & Co., to the amount of over $ 18,000, were levied upon the stock. There is some contradiction in the evidence as to the value of the...