Butler v. Cooper

• Decision Date: 01 November 1895
• Docket Number: 61
• Citation: 42 P. 839,3 Kan.App. 145
• Parties: MARIA S. BUTLER v. J. B. COOPER et al
• Court: Kansas Court of Appeals

42 P. 839

3 Kan.App. 145

MARIA S. BUTLER v. J. B. COOPER et al

No. 61

Court of Appeals of Kansas, Southern Department, Eastern Division

November 1, 1895

Opinion Filed December 4, 1895.

MEMORANDUM.-- Error from Montgomery district court; J. D MCCUE, judge. Action in replevin by Maria S. Butler against J. B. Cooper and M. L. Conley. Judgment for defendants. Plaintiff brings the case to this court. Reversed. The opinion herein, filed December 4, 1895, states the material facts.

Judgment reversed and case remanded.

Joseph Chandler, for plaintiff in error.

T. H Stanford, for defendants in error.

JOHNSON P. J., All the Judges concurring.

OPINION

JOHNSON, P. J.:

This was an action in replevin to recover possession of two horses, one two-horse buggy, and one set of double buggy harness, all of the value of $ 325, commenced by Maria S. Butler against J. B. Cooper and M. L. Conley in the district court of Montgomery count. The petition of the plaintiff alleged that she was the owner of the property and entitled to the immediate possession of the same, and that it was wrongfully detained from her by defendants. Upon filing the necessary affidavit and executing an undertaking in replevin, an order of delivery was issued, and the property taken under the order of delivery and delivered to the plaintiff. The defendant M. L. Conley filed his separate answer, disclaiming any interest in the property, and denying that he detained the property or that he ever had it in his possession. The defendant J. B. Cooper filed his separate answer, containing a general denial of the allegations in the petition of the plaintiff, except as to the value of the property and that he refused to deliver the possession of the property to the plaintiff; there was a second defense by way of affirmative relief set up by this defendant, to which it is unnecessary to refer in this case, as there was no evidence tending to prove the same and no finding made thereon.

The case was tried before the court and jury on these issues, and resulted in a verdict finding that the defendants did not wrongfully detain the horses described in plaintiff's petition, that the defendants' interest in said horses was $ 159.24, and that at the commencement of the action the plaintiff was the owner of the buggy and harness described in her petition, and entitled to the immediate possession of the same, and that the same were wrongfully detained from her by the defendants. Thereupon the court rendered judgment against the plaintiff for the return of the horses to the defendants, or, in case a return could not be had, that the said defendants have and recover judgment against her for the sum of $ 159.24, the value of defendants' interest, and all the costs of said suit. To the verdict and judgment the plaintiff below excepted, and brings the matter to this court for review.

On the trial of the case, Cooper sought to justify his possession of the property by virtue of a certain execution issued out of the court of a justice of the peace in Montgomery county, Kansas, and directed to him as constable in a case wherein T. H. Stanford was plaintiff and William Butler, the husband of the plaintiff, was defendant, by virtue of which he seized the property and holds it for the satisfaction of such execution. During the trial of the case, William Butler was sworn and examined as a witness on behalf of the plaintiff so far as he acted as her agent in making demand of the defendants for the possession of the property after it had been taken under execution, and the bringing of said suit. On the cross-examination of this witness, the defendants sought to prove by him a certain conversation had between him and one T. H. Stanford, at Tyro, Montgomery county, in relation to what this witness had stated to Stanford in relation to his property. This evidence was objected to by the plaintiff, for the reason that it was incompetent and not proper cross-examination of the witness, and that the plaintiff was not bound by any statement made in relation to it. The court overruled the objection and directed...