Kerwood v. Ayres
| Decision Date | 07 May 1898 |
| Docket Number | 8834 |
| Parties | JAMES P. KERWOOD v. R. S. AYRES |
| Court | Kansas Supreme Court |
Decided January, 1898.
Error from Anderson District Court. A. W. Benson, Judge.
Judgment affirmed.
W. A and J. G. Johnson, for plaintiff in error.
Noah L Bowman, for defendant in error.
The defendant in error, as sheriff, levied an attachment upon certain goods as the property of one W. L. Denny. The plaintiff in error, claiming ownership of the goods by purchase from Denny, brought an action against the sheriff for damages for their conversion. The petition, however, did not characterize the act of conversion as performed by the defendant in his official capacity. To this petition only a general denial was filed by way of answer. The jury found in defendant's favor; judgment was rendered in accordance with the verdict, and the plaintiff prosecutes error to this court.
On the trial the District Court, over the plaintiff's objections, received evidence tending to show that the claim of purchase of the goods from Denny was fraudulent. The admission of this evidence constitutes the principal ground of complaint. The argument is that, in actions for damages for conversion of goods, affirmative defenses, such as justification, or impeachment of plaintiff's title, are not admissible under a general denial; that under such denial the defendant is limited to evidence of controverting the charge of conversion. The plaintiff in error is mistaken. The rule is the same in actions for conversion as in replevin. According to repeated decisions of this court, the filing of a general denial in the last mentioned class of actions fully puts in issue the plaintiff's title to the property claimed. Wilson v. Fuller, 9 Kan. 176); Holmberg v. Dean, 21 Kan. 73. The courts apply the same rule in actions for conversion.
"A general denial traverses not only the conversion, but also the plaintiff's title, and hence a defendant may under such a pleading show the sources from which he claims title or that he has no title; or that the property belonged to a third person who transferred it to the plaintiff without consideration and with intent to cheat the third person." Kinkead's Code Pleading, vol. 1, § 474.
In Eureka Iron & Steel Works v. Bresnahan (66 Mich. 489, 33 N.W. 834), the Supreme Court of that state said:
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Tootle v. Coleman
...p. 122, Sec. 103. The argument that it was unnecessary for the defendants to plead this new matter, under the decision in Kerwood v. Ayres, 59 Kan. 343, 53 P. 134, in to prove it, and that therefore the plaintiffs had no right to reply to it, is not persuasive. When the defendants unnecessa......
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Haynes v. Kettenbach Co.
... ... the states. (21 Ency. of Pl. & Pr. 1096; Leary v ... Moran, 106 Ind. 560, 7 N.E. 236; Swope v. Paul, ... 4 Ind.App. 463, 31 N.E. 42; Kerwood v. Ayres, 59 ... Kan. 343, 53 P. 134; Campbell v. Meyer Bros. Drug ... Store, 7 Kan. App. 501, 54 P. 287; Eureka Iron Works ... v. Bresnahan, 66 ... ...
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Rodgers v. Crum
...all hold that under a general denial a defendant may make any defense that will defeat a plaintiff's claim. Long ago in Kerwood v. Ayres, 59 Kan. 343, 53 P. 134, we held: 'Under a general denial in an action for damages for the conversion of personal property, the defendant is not limited t......
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Street v. Morgan
... ... of such proof by [64 Kan. 87] showing that the property taken ... was exempt." See, also, Kerwood v. Ayres, 59 ... Kan. 343, 53 P. 134 ... No ... error was committed in refusing the continuance applied for ... by the defendant, and ... ...