Hardwick v. Brookover

• Decision Date: 07 May 1892
• Citation: 30 P. 21,48 Kan. 609
• Parties: WILLIAM P. HARDWICK v. CYRUS BROOKOVER, as Sheriff of Greenwood County
• Court: Kansas Supreme Court

30 P. 21

48 Kan. 609

WILLIAM P. HARDWICK v. CYRUS BROOKOVER, as Sheriff of Greenwood County

Supreme Court of Kansas

May 7, 1892

Error from Greenwood District Court.

THE opinion states the facts. Judgment for defendant, Brookover at the May term, 1891. The plaintiff, Hardwick, brings the case to this court.

Judgment affirmed.

McDermott & Johnson, and T. L. Davis, for plaintiff in error.

Clogston Hamilton, Fuller & Cubbison, for defendant in error.

STRANG C. All the Justices concurring.

OPINION

STRANG, C.:

Action of replevin for the possession of 400 head of Texas cattle. The plaintiff in error, who was plaintiff below, says that he was the owner of 400 head of Texas cattle which he was holding in Greenwood county, Kansas; that the defendant unlawfully deprived him of their possession on or about the 10th day of July, 1890, and has ever since refused to return them. The defendant claims he took possession of and holds the cattle under and pursuant to an order of the live-stock sanitary commission of the state. On the trial, the court instructed the jury to return a verdict for the defendant and to find the value of his possession to be $ 2,356.57, the amount of his bill for keeping the cattle. The plaintiff objected to this instruction, and insisted on the court giving other instructions prepared by him, which the court refused. The plaintiff says the case should be reversed for the following reasons: (1) The admission of incompetent evidence; (2) error in giving and refusing instructions; (3) error in amount recovered as the value of the defendant's possession.

The plaintiff in error first complains of the admission in evidence on the part of defense of the order of the live-stock sanitary commission of the state, under which the sheriff took and held the plaintiff's cattle. The contention of counsel for plaintiff is, that said order was not admissible in evidence, and could not operate as a justification of the sheriff in taking and holding the said cattle, until he established the fact by competent evidence that the sanitary commission had investigated and made a finding that the cattle of the plaintiff were liable to impart the Texas, splenic or Spanish fever; and that such finding, which plaintiff alleges is in the nature of a judgment in a judicial investigation, can only be proved by the record as made and kept by said commission. Is this contention of the plaintiff true, or is the order under which the sheriff took possession of and held the cattle admissible as evidence in the first instance, that is, without first establishing the finding of the commission on which it was based? We think the order of the commission to the sheriff is in the nature of an execution on a judgment, and that it was of itself, prima facie, a sufficient justification of the sheriff in taking and holding the cattle. The plaintiff might in this case have investigated the question as to whether the cattle were liable to impart Texas, splenic or Spanish fever. The finding of the sanitary commission thereon was not conclusive on him at all. There was, however, no attempt to investigate that question. In Crocker on Sheriffs, § 866, it is said: "Where the sheriff is sued by the defendant in the action in which the process issued, for acts done thereunder, as levying on exempt property and the like, it is not necessary for him in justifying under such process that he should show a judgment."

In Holmes v. Nuncastle, 12 Johnson's Rep., it was held "that an officer sued for taking goods under an execution need only give the execution in evidence." The court in the case said: "What the objection was to the admission of the execution in evidence does not appear. The execution was all that it was necessary for the constable to show in his defense, provided he had a right to take the money under it; he was not bound to show the judgment." The clause in that case, "provided he had a right to take the money under it," relates to the question therein raised as to whether or not the sheriff could levy on money. See also Savacool v. Broughton, 5 Wend. 170; Barker v. Miller, 6...