Dow v. Julien

• Decision Date: 07 November 1884
• Citation: 32 Kan. 576,4 P. 1000
• Parties: KIMBALL DOW, as Assignee of the Estate of Charles H. Taylor, v. WILLIAM JULIEN, et al
• Court: Kansas Supreme Court

4 P. 1000

32 Kan. 576

KIMBALL DOW, as Assignee of the Estate of Charles H. Taylor, v. WILLIAM JULIEN, et al

Supreme Court of Kansas

November 7, 1884

Error from Johnson District Court.

ACTION brought by Baldwin on the bond of Julien as sheriff of Johnson county, and the sureties thereon, to recover damages for an alleged unlawful attachment. After the trial of the case, plaintiff died, and Dow was appointed assignee of the estate of C. H. Taylor, and the action was revived in his name. Trial at the June Term, 1883, and judgment for the defendants for costs against the plaintiff. He brings the case here. The material facts are stated in the opinion.

Judgment reversed and cause remanded.

E. B Gill, for plaintiff in error.

F. R Ogg, and Burris & Little, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The facts in this case are as follows: On November 19, 1881, C. H. Taylor executed a voluntary assignment of nearly all his property to Almon H. Baldwin, in trust for the benefit of his creditors. On the same day Harris & Co. commenced an action against Taylor and others, on a promissory note executed September 16, 1881, for one thousand dollars, before it was due, by attachment under §§ 230 and 231 of the civil code. On November 21, 1881, the property assigned to Almon H. Baldwin was taken by the sheriff from the possession of the assignee, on the order of attachment. On account of some alleged irregularities connected with the execution and consummation of the assignment of November 19, 1881, Taylor executed another voluntary assignment of all his property on November 25, 1881, which was afterward filed in the office of the register of deeds, as required by law. On January 21, 1882, the order of attachment was discharged by the judge of the district court at chambers. Exceptions were taken to the rulings of the judge, and upon the hearing thereof at the June term of this court for 1882, the order of the judge was affirmed. (Harris & Co. v. Capell, 28 Kan. 117.) The mandate of this court was issued June 9, 1882. Soon after that date, and about June 14, 1882, the property attached under the order of November 21, 1881, or at least most of it, was returned to the assignee. On September 13, 1882, this action was commenced by Baldwin, on the official bond of the defendant Julien, as sheriff of Johnson county, and his sureties, to recover damages for the alleged unlawful attachment. The petition, inter alia, charged that Julien, as sheriff, in the execution of the order of attachment practiced fraud, deceit and oppression; that his levy under the writ of attachment was excessive; that in proceeding under the writ of attachment he acted willfully, maliciously and fraudulently, and made use of his official power to oppress plaintiff; that he retained possession of the goods for more than six months after the wrongful levy upon the same, and that some of the goods he never returned to plaintiff and never accounted for in any way. Subsequently to the trial of the case, Almon H. Baldwin died, and Kimball Dow was appointed assignee of the estate of said C. H. Taylor, and this proceeding was revived in his name.

As tending to prove that the sheriff well and faithfully performed the duties of his office, and exercised ordinary care in attaching the property, J. M. Hadley was introduced upon the trial on the part of the defendants, who testified, among other things, as follows: "Was one year a merchant, and was sheriff of this county and attached several stocks." Question: "State whether these goods were as well handled and cared for as goods usually are when attached?" This question was objected to by plaintiff as incompetent, irrelevant, and immaterial, and because the proper foundation therefor had not been laid. The objections were overruled, and plaintiff excepted. The witness answered, "They were."

Among the special findings of the jury was the following: "Did William Julien, sheriff, use...