Cook v. Higgins

• Decision Date: 10 January 1903
• Docket Number: 12,863
• Citation: 66 Kan. 762,71 P. 259
• Parties: PORTER S. COOK, as Sheriff, etc., et al., v. J. M. HIGGINS
• Court: Kansas Supreme Court

71 P. 259

66 Kan. 762

PORTER S. COOK, as Sheriff, etc., et al., v. J. M. HIGGINS

No. 12,863

Supreme Court of Kansas

January 10, 1903

Decided January, 1903.

Error from Shawnee district court; Z. T. HAZEN, judge.

Judgment affirmed.

Gleed, Ware & Gleed, and Meservey, Pierce & German, for plaintiffs in error.

Albert Watkins, and Tetirick & Rose, for defendant in error.

OPINION

Per Curiam:

This was an action of replevin to recover possession of two car-loads of wheat, which were seized by the sheriff while they were in transit. The wheat was attached as the property of J. W. Hawn, but it was claimed by J. M. Higgins. Hawn sold the wheat to the Bank of Blackwell, which in turn sold it to Higgins before it was attached. The main question in the case was the good faith of these transfers. Their validity was upheld by the jury upon what seems to us to be sufficient testimony. So far as the freight charges and the claims of a carrier's lien are concerned the sheriff did not base his right on such a claim, and on the trial he stated that the freight charges had been paid. The seizure of the grain of Higgins on process directed against Hawn was wrongful, and the writ which the sheriff held and served afforded no justification for his tortious act. By reason of this wrongful action he is not in a position to claim a lien, nor can any one be subrogated to a lien through him.

We find nothing substantial in the objections to rulings on evidence, in charging the jury, or upon special findings returned by the jury; nor is there anything in the case requiring extended comment.

The judgment will be affirmed.