J.M.W. Jones Stationery & Paper Co. v. Hentig

• Decision Date: 03 January 1884
• Citation: 31 Kan. 317,1 P. 529
• Parties: J. M. W. JONES STATIONERY AND PAPER COMPANY, et al., v. F. G. HENTIG
• Court: Kansas Supreme Court

1 P. 529

31 Kan. 317

J. M. W. JONES STATIONERY AND PAPER COMPANY, et al., v. F. G. HENTIG

Supreme Court of Kansas

January 3, 1884

Motion for Rehearing.

SEPTEMBER 4, 1883, the J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds filed a motion for a rehearing in Stationery and Paper Co. v. Hentig, (reported in 29 Kan. 75 et seq.) The facts are stated in the opinion herein, filed at the January, 1884, session of the court.

Motion for rehearing dismissed.

W. C Webb, D. E. Sowers, and L. J. Webb, for plaintiffs in error.

Frank Patrick, for defendant in error The Western News Co.; J. G Wood, for defendant in error James Douglas.

VALENTINE J. HORTON, C. J., BREWER, J., concurring.

OPINION

VALENTINE, J.:

On January 17, 1881, Constable Kuykendall held a fund of about $ 225 in his hands, which was the proceeds of a sale of goods belonging to Geo. O. Wilmarth, the judgment debtor in eight different cases in which the parties hereafter named were the judgment creditors. These judgment creditors held execution liens upon this fund in the following order, to wit: (1) The Western News Co.; (2) James Douglas; (3) J. M. W. Jones Stationery and Paper Co.; (4) Reynolds & Reynolds; (5) Kate Douglas; (6) M. H. Case; (7) The Williamson-Stewart Paper Co.; (8) T. J. Kellam & Co. A dispute arose between the judgment creditors as to the priority of their liens, and to save costs and expenses they amicably submitted their controversy, under § 525 of the civil code, to the district court, the first five of which were to be treated as plaintiffs, and the last three of which were to be treated as defendants. They were so classified for the reason that the liens of the first five existed by virtue of executions held by Constable Miller, while the liens of the last three existed by virtue of executions held by Constable Kuykendall. It will be seen that this controversy was in the nature of a bill of interpleader. The district court decided in favor of the defendants in that court and against the plaintiffs, and the plaintiffs duly excepted. The district court fixed the priority of liens as follows: (1) M. H. Case; (2) The Williamson-Stewart Paper Co.; (3) T. J. Kellam & Co.; (4) The Western News Co.; (5) James Douglas; (6) Kate Douglas; (7) J. M. W. Jones Stationery and Paper Co.; (8) Reynolds & Reynolds. Two of the plaintiffs, The J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds, then brought the case to the supreme court, making the defendants in that case, M. H. Case, the Williamson-Stewart Paper Co., and T. J. Kellam & Co., defendants in error. The other plaintiffs in that case, to wit, The Western News Co., James Douglas, and Kate Douglas, were not made parties in this court. The case, however, was tried in this court, and determined just as though all the parties were present in court litigating the questions involved in the case, and the decision of this court was made accordingly, reversing the judgment of the court, and remanding the case for further proceedings in accordance with the views expressed in the written opinion of the court. ( Stationery and Paper Co. v. Case, 26 Kan. 299.) All that was intended by this decision, however, was simply to say that the liens procured by virtue of the Miller executions were prior to the liens procured by virtue of the Kuykendall executions, leaving the decision of the district court upon all the other questions to remain in full force and undisturbed. There was no intention to disturb the decision of the district court with respect to the priority of the liens of the several parties in any other particular.

When the case was taken back to the district court, another claimant presented himself and demanded the fund; and he also was allowed to interplead for the fund. This other claimant was F. G. Hentig, the assignee of Geo. O. Wilmarth, the judgment debtor. Afterward a trial was had in the case in the district court, though it does not appear that any of the claimants were present except the J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds and F. G. Hentig. Why the case was thus tried in the absence of nearly all the claimants, nearly all the real parties in interest, is not disclosed. The court decided this contest in favor of Hentig, and awarded to him the entire fund in controversy. The said J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds again brought the case to the supreme court, making F. G. Hentig the defendant in error. None of the other parties or claimants were made parties in the supreme court, but the case was submitted to the supreme court and argued in the briefs of counsel just as though all the parties interested in the fund were present in the court and parties to the petition in error, either as plaintiffs or defendants; and the court decided the case as though such were the case, and ordered that the fund be paid out to the parties respectively in the same manner that the district court should have ordered the same to be paid out on the first trial of the case in that court. (Stationery and Paper Co. v. Hentig, 29 Kan. 75, 80.) A mandate was issued to the district court, and the district court rendered judgment in accordance with the mandate; and the J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds, being dissatisfied therewith, again brought the case to the supreme court, but the judgment of the district court was affirmed. (Stationery and Paper Co. v. Western News Co., 30 Kan. 334, 1 P. 534.) Afterward, and on July 6, 1883, the J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds filed a motion for a rehearing in this court in this last-mentioned case, which motion for a rehearing is still pending in this court. Afterward, and on September 4, 1883, the J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds filed a motion for a rehearing in the Hentig case, (the case reported in 29 Kan. 75,) which motion is also pending in this court, and is the one which we are now considering and the one for which this opinion is prepared. The Hentig case was decided December 7, 1882, and at the July term of this court in 1882; and the motion for the rehearing in that case was filed September 4, 1883, and at the July term of the court in 1883. The motion for the rehearing was not filed at the same term at which the decision was rendered, nor at the next term thereafter; but it was in fact filed at the second term thereafter, and nearly a year thereafter, and after one whole term of the supreme court and parts of two other terms had intervened.

The questions now arise: Should this motion for a rehearing be entertained, and should it be sustained? There is really no merit in the motion. The judgment as it is now rendered by the district court is precisely the judgment that should have been rendered upon the original trial in the district court; and with respect to the matters now complained of it is precisely the judgment that was in fact rendered in the district court upon the original trial. All that the present plaintiffs in error, the J. M. W. Jones Stationery and Paper Co. and Reynolds & Reynolds, complain of is, that by the present judgment of the district court the liens of the Western News Co. and of James Douglas are given priority over the liens of the present plaintiffs in error. Now the district court on the original trial also gave just such priority of liens; and to that extent there has never been any intention on the part of the supreme court to overrule or reverse the judgment of the district court, and the district court itself has never changed or overruled any of its rulings upon this subject. The supreme court could not well have reversed the judgment of the district court giving priority to the liens of the Western News Company and James Douglas over those of the present plaintiffs in error; for the Western News Company and James Douglas have never been parties in this court. Certainly, this court could not disturb their rights without jurisdiction over them, or without having them before it.

The only right which the present plaintiffs in error have ever had was to obtain a judgment declaring their liens prior to the liens of all others except those of the Western News Company and James Douglas, and the present judgment of the district court is precisely to that effect. When the district court decided that the liens of M. H. Case the ...