Hagar v. Haas

• Decision Date: 07 February 1903
• Docket Number: 12,065
• Citation: 66 Kan. 333,71 P. 822
• Parties: WILLIAM HAGAR v. GEO. N. HAAS et al
• Court: Kansas Supreme Court

71 P. 822

66 Kan. 333

WILLIAM HAGAR v. GEO. N. HAAS et al

No. 12,065

Supreme Court of Kansas

February 7, 1903

Decided January, 1903.

Error from Jackson district court; MARSHALL GEPHART, judge. Opinion filed March 7, 1903. Reversed.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. ATTACHMENT--Trespass. A seizure of property by an officer under a void attachment is nothing better than a naked trespass, as against a stranger who is in the rightful possession of such property.

2. ATTACHMENT--Sale of Perishable Property -- Owner not Estopped by Purchase. In a controversy as to the ownership and right of possession of attached property, the court, during the pendency of an action to recover the same from the attaching officer, ordered it to be sold because it was of a perishable nature, and at such sale the plaintiff became a bidder and purchased the property. Held that the bid and purchase did not estop plaintiff from further asserting title and right of possession to the property.

3. ATTACHMENT--Verdict Improperly Ordered by Court. Where the plaintiff makes a prima facie showing of ownership and right of possession of property attached by an officer as the property of another, and the attachment under which the officer justified is held to be void, a verdict in favor of the officer cannot be ordered by the court.

Crane & Woodburn, for plaintiff in error.

JOHNSTON, C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.:

This was an action of replevin to recover corn grown upon the premises of D. H. Hagar. On June 27, 1899, Philip Haas, under-sheriff of Jackson county, attempted to levy an attachment on the growing corn as the property of D. H. Hagar. He went through the form of making an appraisement and declaring a levy on the corn, but did not take possession or control of it, nor exercise any dominion over it, until about the 14th of November of that year. On August 9, 1899, D. H. Hagar, who was then in possession of the corn, sold and delivered the possession of it to William Hagar. After the harvesting of the corn had begun, the sheriff and under-sheriff came upon the land and took possession of the corn, against the protest of William Hagar, who at once began this action of replevin. A redelivery bond was given and the corn was kept by the sheriff, and, while the attachment was pending, an order was made by the judge of the district court directing the sale of the corn, because it was of a perishable nature and in danger of being destroyed. At a sale had on the 20th day of November, the sheriff sold the corn in controversy to William Hagar, who was the plaintiff below in this action. The sheriff claimed a right to the possession by virtue of the levy of attachment, but in the course of the trial the court held that the levy was absolutely void, and struck from the case all testimony pertaining to the attachment.

William Hagar made at least a prima facie showing of the elements essential to a recovery, namely, ownership, right of possession, and wrongful detention. Notwithstanding the fact that the sheriff and under-sheriff failed to show any right to the corn the court directed a verdict in their favor. This was error. The only justification of the officers for taking and detaining the corn was the order of attachment, and when the attachment proceedings...