Hoisington v. Brakey

• Decision Date: 06 March 1884
• Citation: 31 Kan. 560,3 P. 353
• Parties: GEORGE HOISINGTON, as Sheriff of Dickinson County, v. JANE BRAKEY
• Court: Kansas Supreme Court

3 P. 353

31 Kan. 560

GEORGE HOISINGTON, as Sheriff of Dickinson County, v. JANE BRAKEY

Supreme Court of Kansas

March 6, 1884

Error from Dickinson District Court.

REPLEVIN brought by Jane Brakey against George Hoisington, as sheriff of Dickinson county. Judgment for plaintiff, at the October Term, 1883. Defendant brings the case here. The opinion states the facts.

Judgment reversed and cause remanded for new trial.

John H Mahan, and J. R. Burton, for plaintiff in error.

J. W D. Pierce, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The facts in this case are substantially these: In January, 1881, George Hoisington, as sheriff of Dickinson county, levied upon one roan horse, one dark sorrel-chestnut horse, and two mules, as the property of John Brakey, the husband of Jane Brakey, under an execution in favor of C. H. and L. J. McCormick. Soon thereafter Jane Brakey replevied from Hoisington all the property, she claiming title thereto. This case was tried at the October term of the court for 1881, and resulted in a judgment for Hoisington. Within a few days after the levy above mentioned, Hoisington, as sheriff, also levied upon one cream-colored mare and one white mare as the property of John Brakey, under executions issued in favor of N. C. Thompson, A. Van Patten and Peter E. Willett. Jane Brakey at once replevied the animals so levied upon, and the case was tried at the October term of the court for 1883. In this case the jury returned a verdict that Jane Brakey was the owner and entitled to immediate possession of the property in controversy, and that the same was wrongfully detained by Hoisington. Judgment was entered thereon, and Hoisington brings the case here.

The depositions taken in the first case were read in both cases. Jane Brakey's evidence was given in the form of a deposition, in which she testified she was married to John Brakey in 1855, in Lower Canada, county of Missisce; that at the time she married she had six cows, seven sheep, furniture and bedding necessary for housekeeping, and three hundred dollars in money; that the stock and money were received by inheritance from her father; that after her marriage she remained in Canada fifteen years; that she did not carry on and conduct any separate or individual business whilst in Canada; that she went to Illinois, where she lived about ten years; that in 1869 she earned one hundred dollars by working out, and in 1872 received from her father's estate $ 550; that after she came to the United States she did business in her own name; that she loaned her money to her husband, John Brakey; that she continued to loan it to him until her children got old enough to use it; that after she and her family came to Kansas, in 1878, her husband paid her $ 2,000 that he owed to her; that she put this money into stock; that the property in controversy in the two suits was three horses, one mare, and a span of mules.

In each case it was the contention of Hoisington that the transfer of the money by John Brakey to his wife was not a bona fide payment of a debt, but was in fact a device only to place his property out of the reach of his creditors; and that the claim of Jane Brakey to the stock was fraudulent, and merely set up to cheat and defraud her husband's creditors. In each case he introduced evidence to weaken and contradict the evidence of Jane Brakey, and in the case at bar he offered in evidence the pleadings, instructions, special findings, verdict and judgment in the case tried at the October term of the court for 1881, wherein Jane Brakey was plaintiff and himself defendant, and in which he recovered judgment. To the introduction of this evidence, Jane Brakey objected for the following reasons: that said papers did not tend to prove any issue in this case; that while the parties were nominally the same, the defendant, George Hoisington, was not the real party, but stood in a representative capacity as a mere stockholder; that the creditors whose executions he held were the real parties, and were not the same in both cases; and that the property in controversy in the second case was not identical but different from that in controversy in the first case. The court sustained the objection and excluded the evidence upon the ground that the defendant was not, but the creditors were, the real parties, and hence that the parties in the cases were not the same. This ruling is complained of.

The ground upon which the court excluded this evidence is not tenable. In both actions the court, upon application of Hoisington and of the judgment creditors in whose favor the executions were issued, might have permitted the latter to be substituted as the...