Hughes v. Ward

• Citation: 16 P. 810,38 Kan. 452
• Parties: J. W. HUGHES v. JAY WARD
• Decision Date: 11 February 1888
• Court: United States State Supreme Court of Kansas

16 P. 810

38 Kan. 452

J. W. HUGHES v. JAY WARD

Supreme Court of Kansas

February 11, 1888

Error from Shawnee Superior Court.

ACTION by Ward against Hughes, to recover possession of certain books and a book-case -- both valued at $ 279. Trial at the September Term, 1885. The jury found that --

"At the commencement of this action, the plaintiff, Jay Ward, was entitled to the immediate possession of the property in controversy; that the defendant, J. W. Hughes, then wrongfully detained the same from the plaintiff; that at that time said property was of the value of $ 135, and assessed the plaintiff's damages for such wrongful detention at $ 14.81."

New trial denied; judgment for plaintiff. The defendant brings the case here.

Judgment affirmed.

John T Bradley, for plaintiff in error;

W. A S. Bird, for defendant in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

This was an action of replevin, brought by Jay Ward, to recover the possession of a book-case and some books, taken on attachment by Hughes, as constable, as the property of J. R. Myers, at the suit of Eagle & Knox against Myers Bros. Plaintiff claims that he purchased the property in controversy of J. R. Myers in satisfaction of a debt of $ 250 owing him by Myers. The defendant claims that the pretended sale by Myers to the plaintiff was made for the purpose of defrauding the creditors of Myers. Plaintiff as a witness on his own behalf testified that the property in controversy was of the value of $ 250. No objection was made to this testimony, but on the cross-examination it was shown that the plaintiff did not know the market value of the property, and of his own personal knowledge did not know its value. The defendant then moved to strike out all of the plaintiff's testimony in relation to the value of the property, which motion was overruled by the court. In this we see no error. If there had been no foundation laid for the plaintiff's testimony in regard to the value of the property, the defendant might for that reason have objected to it; but no objection having been made at that time, his motion came too late.

The defendant on cross-examination also asked the plaintiff whether he had not testified on a former trial of this case, and whether in that testimony he had not given a different statement of facts from that given in his testimony on this trial. Plaintiff answered that he did not know in relation to that matter what his testimony was on the former trial; whereupon the defendant renewed the question, which was objected to, and the objection sustained. The court doubtless sustained the objection to the last question for the reason that the same question had been already answered, and also that it was not material to lay the foundation for an impeachment, and that the plaintiff's declarations and statements at a former trial could be given in evidence without first calling his attention to his former testimony.

Hughes as a witness in his own behalf, testified that when the book-case was attached, he found certain property belonging to Myers in one of the drawers, consisting of private letters, certain medicines and photographs; that Myers had the key to the case, and that the property so found all belonged to Myers. Defe...