Frankhouser v. Neally

• Decision Date: 01 July 1899
• Docket Number: 399
• Citation: Frankhouser v. Neally, 8 Kan. App. 822, 57 P. 980 (Kan. App. 1899)
• Parties: N. FRANKHOUSER v. J. J. NEALLY
• Court: Kansas Court of Appeals

57 P. 980

8 Kan.App. 822

N. FRANKHOUSER v. J. J. NEALLY

No. 399

Court of Appeals of Kansas, Southern Department

July 1, 1899

Opinion Filed July 21, 1899.

Error from Osage district court; WILLIAM THOMSON, judge.Reversed.

Judgment reversed and cause remanded.

Pleasant & Pleasant, for plaintiff in error.

Isaac Farley, and L. T. Wilson, for defendant in error.

OPINION

MILTON, J.:

In this caseJ. J. Neally recovered judgment before a justice of the peace of Osage county, in 1890, against N. Frankhouser, who was then sheriff of that county, the action being on an implied contract for the value of 1200 bushels of corn improperly seized and sold by the sheriff under an execution against W. L. Neally, W. Z. Neally, and George W. Neally.The defendant appealed to the district court where, at the June term, 1890, the plaintiff obtained judgment in the sum of $ 172.64.That judgment was reversed by the supreme court.(Frankhouser v. Neally, 54 Kan. 744, 39 P. 700.)The action was again tried in the district court of Osage county on November 21, 1890 resulting in a verdict and judgment for the plaintiff below.The defendant filed no pleading.The jury in the last trial allowed $ 168 for the value of 1200 bushels of corn at fourteen cents per bushel, and $ 59.36 as interest on the value of the corn, and found specially that the sheriff levied on and sold 1200 bushels of corn, while the sheriff's return on the execution showed that he sold 945 bushels and 60 pounds at six cents per bushel.

The jury also found that the value of the corn at the time it was sold was fourteen cents per bushel; that the corn, which was in an uncovered pile in a pasture, was not in a marketable condition at the time of the sale by the sheriff, for the reason that a herd of cattle had broken in and trampled on the corn and had eaten a considerable quantity thereof before the sale, but that there was no evidence as...