Hall v. Hurd
| Decision Date | 08 December 1888 |
| Parties | JAMES HALL v. W. H. HURD |
| Court | Kansas Supreme Court |
Error from Harvey District Court.
ACTION brought by Hall against Hurd, to recover $ 100 as penalty for refusing, on demand, to discharge of record a chattel mortgage given by the plaintiff on or about April 1, 1882. The court found substantially as follows: That the mortgage was paid off about September 18, 1882, a few days before the same was due; that afterward, in February, plaintiff commenced an action before a justice of the peace to recover the penalty for failure to release said mortgage. A few days after the commencement of that action, plaintiff made his first demand upon the defendant to release and discharge the mortgage of record. Trial was had in the justice's court which resulted in a judgment for the plaintiff, and defendant appealed to the district court; that on the 25th day of September, 1884, the plaintiff dismissed his action in the district court without prejudice, and within a year thereafter lacking a day, brought this action; to which the defendant pleaded, first, a general denial; and second, that the action was barred by the statute of limitations, more than one year having elapsed after the demand before the suit was brought. At the May term, 1887, the court found that the action was barred, and rendered judgment for the defendant. The plaintiff brings the case here for review.
Judgment reversed and cause remanded for new trial.
Brown & Kline, for plaintiff in error.
J. W Ady, for defendant in error.
OPINION
The first question presented is, is a demand necessary to entitle a party to an action for a penalty for failing to release a chattel mortgage? Section 16 of chapter 68, under which this action was brought, does not in terms provide for a demand but with its reference to § 8 of chapter 68, we think that it implies that a demand is necessary. The action having been brought in justice's court without a demand having been made, it was prematurely brought, and for that reason, doubtless, the action was afterward dismissed. This action in justice's court was brought within a year after the mortgage debt had been paid, and the present action was brought within a year after the dismissal of the action begun in justice's court. The question presented then is, did the bringing of the action in justice's court before demand was made prevent the statute from running? It is contended by the defendant in error that it did not prevent the statute from running, for the...
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