Guy v. Doak

• Decision Date: 06 June 1891
• Citation: 27 P. 968,47 Kan. 236
• Parties: A. E. GUY, as Receiver of J. H. Allen et al., v. D. P. DOAK et al
• Court: Kansas Supreme Court

27 P. 968

47 Kan. 236

A. E. GUY, as Receiver of J. H. Allen et al., v. D. P. DOAK et al

Supreme Court of Kansas

June 6, 1891

Error fro Kearny District Court.

THE facts are sufficiently set forth in the opinion, filed June 6, 1891.

Judgment affirmed.

Calhoun & Garwood, D. H. Ettien, and W. R. Hazen, for plaintiff in error.

Morgan Lowrance & Mason, for defendants in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON C.:

A. E. Guy, as receiver of J. H. Allen and A. P. Allen, filed his petition in the district court of Kearny county on the 14th day of May, 1888, against D. P. Doak and A. T. Irvin, to recover the possession of 37 head of horses, 2 mules, 3 wagons, 400 tons of hay, and 218 head of cattle, alleged to be the property of the Allens. Guy claimed to have been appointed receiver in the action of Ott & Tewksbury, the Hamilton Land Company and M. F. Cooley v. D. P. Doak, A. T. Irvin, the Kendall Exchange Bank, and Thomas Doak, then pending in the district court of Kearny county, in which it was sought to foreclose certain chattel mortgages given to these parties by the Allens, and to determine the order of priority of liens between them and the defendants, and for other relief. The receiver was authorized by the court to bring this action. The pleadings were filed and issues made up, and the cause came on for trial at the October term, 1888. After the evidence had been submitted in behalf of the receiver, the defendants demurred to the evidence for the reason that such evidence failed to show facts sufficient to constitute a cause of action against said defendants. The court sustained the demurrer, and, after hearing the evidence on behalf of the defendants, found that the defendant D. P. Doak is, and at the time of the commencement of this action was, the owner and entitled to the immediate possession of the property described in the affidavit for replevin in this action, and of' the property obtained by the plaintiff under the order of delivery issued in said action. The court found the value of the property at $ 4,977, and that Doak had been damaged by its detention in the sum of $ 737.33; that Doak was entitled to a return of the property, and, in case it could not be returned to him, rendered judgment for above amounts, with interest. A motion for a new trial was overruled, all proper exceptions saved, and the cause brought here for review.

A preliminary question is raised upon the condition of the record. It is said that, because there are two distinct cases made, we cannot consider the errors assigned. The case of Ott & Tewksbury et al. v. Doak et al. and this case were tried together, and both determined on the facts applicable to each case. A petition in error is filed in each case, the record being attached to one, and referred to in the other. While the better practice would be to file the transcript with each petition in error, in this particular case we think justice can be best subserved by disposing of both cases without reference to the technical defect in the record. It seems that the ruling of the trial court was produced by the fact that the receiver was attempted to be appointed in the case of Ott & Tewksbury et al. v. Doak et al. on the 19th day of April, 1888, when the action was not commenced, or the papers filed, until the 14th day of May, 1888, many days before the commencement of an action, a receiver was appointed or attempted to be appointed in that action. As a receiver is ancillary to the action, like an order of attachment, or an injunction, we know of no theory by which such an appointment can be sustained. No action was pending. No state of facts that could give the court power to make such an order had been presented. We regard the order appointing a receiver under such circumstances as an absolute nullity. It is a self-evident proposition, that the court or the judge at chambers cannot make an order in an action until one is pending in his court.

Attention is called to the fact that, on the 30th day of July, 1888 the defendants in error appeared before the judge at chambers, at Garden City, in Finney county, and moved the court to remove the receiver for causes recited in the motion, and that this motion was overruled, and counsel assert that this ratifies the original appointment. It is a proposition too plain for argument, that at the time the receiver commenced this action he must have been legally appointed in order to maintain it. This record shows that an order appointing a receiver was made by the district judge of the twenty-seventh judicial district, at chambers, in Garden City, Finney county, on the 19th day of April, 1888, in the case of Ott & Tewksbury et al. v. Doak et al., and that this order was filed in the district court of Kearny county on the 14th day of May, 1888. The bond of the receiver so appointed was filed and approved by the clerk of the Kearny county district court on the 14th day of May, 1888. It further shows, that an order was made by the judge of the twenty-seventh judicial district, at chambers, in Scott City, Scott county, on the 9th...