Johnson v. State Bank of Seneca

• Decision Date: 09 April 1898
• Citation: 59 Kan. 250,52 P. 860
• Parties: JOHNSON v. STATE BANK OF SENECA.
• Court: Kansas Supreme Court

52 P. 860

59 Kan. 250

JOHNSON v. STATE BANK OF SENECA.

Supreme Court of Kansas

April 9, 1898

Syllabus by the Court.

1. When, in an action for damages for the conversion of personal property, the petition alleges ownership generally, but the reply admits the ownership to be special, as that of a mortgagee, such change of allegations constitutes a departure in pleading; and, inasmuch as a plaintiff can recover only upon the cause of action stated in his petition, an objection to evidence under the repugnant matter stated in the reply should have been sustained.

2. When a mortgagee of personal property has sold enough of it to satisfy the mortgage debt and expenses of sale, the residue becomes subject to seizure upon execution against the mortgagor, and the mortgagee cannot withhold it from an officer with process of sale, upon the ground that he has agreed with the mortgagor to continue in possession of the property, and to sell it after satisfaction of his own debt and out of the proceeds of the sale to pay orders drawn upon him in favor of the mortgagor’s creditors, and that in pursuance to such agreement he has, in writing, accepted and agreed to pay such orders.

Error from district court, Nemaha county; J. F. Thompson, Judge.

Action by the State Bank of Seneca against P. C. Johnson for conversion. Plaintiff had judgment, and defendant brings error. Reversed.

E. G Wilson, for plaintiff in error.

J. E Taylor and Wells & Wells, for defendant in error.

Opinion

DOSTER, C. J.

This case comes to us upon a certificate of division of the judges of the court of appeals of the Northern department. The firm of Jordan Bros. recovered judgment against Mrs. S. C. Sherman, a merchant. Execution upon this judgment was issued to the plaintiff in error, P. C. Johnson, a constable. He levied it upon goods in possession of the defendant in error, which thereupon brought suit against him for damages for conversion, alleging itself to be the owner of the property. To its petition the plaintiff in error (defendant below) filed an answer justifying himself as constable, denying the plaintiff’s ownership, and alleging that its only interest in the property was by virtue of a mortgage executed to it by Mrs. Sherman, which, as he alleged, had been fully satisfied by a sale of a sufficient amount of the mortgaged property to pay the debt, but that the residue of the property, including the portion levied upon, had been retained in the possession of the mortgagee under the fraudulent pretense that the mortgage debt remained unpaid. To this answer the defendant in error (plaintiff below) filed a reply, admitting its possession of the property as mortgagee only, and alleging the making of an agreement by it with Mrs. Sherman to hold and sell the property, not only for the payment of the mortgage debt, but also for the payment of such orders as she might give upon it in favor of her creditors; that it had accepted and agreed to pay a large amount of such orders so drawn upon it; and that the mortgage debt and the accepted orders exceeded in amount the total value of all the property covered by the mortgage. This reply also alleged the pendency of an action brought against plaintiff by another person claiming the ownership of the property, for damages for its conversion, which action, as it said, if finally decided adversely to it, would subject it to the payment of the full value of all the goods. A trial was had, and judgment rendered in favor of the plaintiff below, from which the defendant below prosecutes error to this court. The questions necessary to be noticed were raised in proper form by the defendant below upon the trial, and upon motion for new trial.

The district court erred in admitting the evidence of the plaintiff below under the pleadings in the case. The reply constituted what is called a "departure" in pleading. A departure is the statement of matter in a reply replication, rejoinder, or subsequent pleading, as a cause of action or defense which is not pursuant to the previous pleading of the same party, and which does not support and verify it; and a test of departure in a reply is the question whether evidence of the facts alleged in it would be, if received, contradictory of the allegations of the petition. 6 Enc. Pl. & Prac. 460, 462; Bliss, Code...