Ellis v. Crowl

• Decision Date: 11 April 1891
• Citation: 26 P. 454,46 Kan. 100
• Parties: ELLIS et al. v. CROWL et al.
• Court: Kansas Supreme Court

26 P. 454

46 Kan. 100

ELLIS et al. v. CROWL et al.

Supreme Court of Kansas

April 11, 1891

Syllabus

A sheriff levied order of attachment upon a stock of merchandise, as the property of C., and took the same into his possession. E. & O., who claimed the property brought an action of replevin against the sheriff, demanding a return of the property, together with damages for its unlawful detention. Judgment was given in their favor for a return of the property and for costs; which judgment was fully satisfied and discharged by the return of the goods and the full payment of the costs, as the judgment required. Afterwards an action was brought against the sheriff and the sureties on his official bond, to recover damages for the wrongful taking and detention of the property. Held, that the adjudication in the replevin action is conclusive upon the parties, and a bar to the maintenance of a second action. Held, further, that the sureties of the sheriff can avail themselves of the bar of the former adjudication and are released from liability.

Error from district court, Pottawattamie county; R. B. SPILLMAN, Judge.

Keller & Noble, for plaintiffs in error.

Hayden & Hayden and W. F. Challis, for defendants in error.

OPINION

JOHNSTON, J.

The plaintiffs brought an action against L. W. Crowl, as sheriff, and W. W. Emmons, E. Walker, and A. Richards, as sureties on the official bond of Crowl, to recover damages for the seizure and detention of a stock of merchandise. In their petition, after setting forth the election of Sheriff Crowl, and the execution and acceptance of his official bond, they alleged that certain orders of attachment, issued from the district court of Pottawattamie county, directing the sheriff to attach the property of one T. J. Coverdale, were placed in the hands of the sheriff to be executed according to law; but that, instead of levying upon the property of Coverdale, he wrongfully attached and took into his possession a stock of general merchandise which was the property of the plaintiffs, valued at about $5,000, and retained the possession of the same from the 20th day of September, 1886, until the 16th day of March, 1887. They allege that by reason of the unlawful seizure and detention of the goods, and the cost and expense of recovering the same, they were damaged in the sum of $5,000.

The answer of the defendants was a general denial, except that Crowl was sheriff, and the other defendants were sureties on his official bond as such sheriff; and, for a second defense, alleged "that on the 23d day of December, 1886, in the district court of Pottawattamie county, state of Kansas, said Ellis & Osborn, the plaintiffs herein, duly filed their petition against L. W. Crowl, one of the defendants herein, setting forth and alleging their right to the immediate possession of the stock of goods and merchandise mentioned and described in the plaintiff’s petition herein, and demanding a return thereof, and a judgment for the sum of $1,500, damages, alleged to have been sustained by reason of the detention, and such proceedings were thereupon had in said suit that said L. W. Crowl appeared and answered to the petition, and a final judgment was therein rendered; that in said action one of the questions litigated and decided was the amount of damage, if any, which the said plaintiffs had sustained by reason of the detention of the said goods by the said L. W. Crowl; that in and by a judgment and decree of said court it was adjudged and determined that the said plaintiffs were entitled to the return of the goods mentioned and described in said petition, and that in default thereof for their value therein stated, and that said plaintiffs also have and recover of and from said L. W. Crowl their costs herein, taxed at $___, which said judgment was fully satisfied and discharged by the return of said goods and chattels, and the full payment of said costs before the commencement of this action; that said plaintiffs utterly failed to recover a judgment for the damages alleged to have been sustained by them in their said petition, or any part thereof."

The plaintiffs demurred to the second count of the answer, for the reason that the facts therein stated did not constitute a defense. The demurrer was overruled by the court, and, the plaintiffs electing to stand on their demurrer, judgment was rendered in favor of the defendants for their costs.

The only question involved is whether the former adjudication in the replevin action against Crowl is a...