McKey v. Lauflin
| Court | United States State Supreme Court of Kansas |
| Writing for the Court | GREEN, C.: |
| Citation | 30 P. 16,48 Kan. 581 |
| Decision Date | 01 January 1892 |
| Parties | G. W. MCKEY et al. v. WILLIAM LAUFLIN |
30 P. 16
48 Kan. 581
G. W. MCKEY et al.
v.
WILLIAM LAUFLIN
Supreme Court of Kansas
January 1, 1892
Error from Elk District Court.
THE opinion states the case.
Judgment affirmed.
Douthitt & Ayres, for plaintiffs in error.
GREEN, C. All the Justices concurring.
OPINION
[48 Kan. 582] GREEN, C.:
William Stow, one of the plaintiffs in error, brought an action in replevin in the district court of Elk county to recover the possession of a mule, which he alleged was worth $ 70; he gave an undertaking, as required by the statute, obtained an order of delivery and through it secured the possession of the mule, and then dismissed his action without prejudice. The defendant in error commenced this action in the district court of Elk county upon the replevin bond, alleging the institution of the replevin action, the giving of the bond, the obtaining possession of the mule, and the dismissal of the action; that the mule was worth $ 75; that the value of the mule as a work animal was 50 cents a day; that Stow, one of the defendants, had had the use of the mule for 408 days, and asked damages on the bond in the sum of $ 279, and for attorney's fees. The plaintiff did not allege that he was the owner of the mule. William Stow, one of the defendants, answered that he was the owner of the property replevied, under and by virtue of a chattel mortgage, and was entitled to the possession of the same; and further alleged, that the plaintiff was not the owner of the property in controversy. A jury was waived, and the court found that the value of the property replevied was $ 40, and gave judgment for that amount against the defendants upon the bond.
It is urged by the plaintiffs in error, that because the plaintiff below did not allege in his petition that he was the owner of the mule the evidence offered as to the value of the mule was irrelevant and immaterial, and that he could not, under the averments of his petition, recover the value of the animal. The sufficiency of the petition was not challenged; the parties went to trial and introduced evidence as to the title and value of the mule, without objection. The pleadings were treated as if the issues had been properly made, and we do not think the plaintiffs in error can now object to the petition.
[48 Kan. 583] It is true that the defendant in the original replevin suit had a right to have his title to the property tried, notwithstanding the dismissal by the plaintiff. ( McVey v....
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Boller v. Davis, 36616.
...that was not his only remedy, for after a voluntary dismissal he might commence an independent action on the bond. In McKey v. Lauflin, 48 Kan. 581, 30 P. 16, it was held that where a party commences an action in replevin and obtains possession of the property in dispute and then voluntaril......
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Fluker v. Emporia City Ry. Co.
...the corporation, and there is no fact found by the trial court that would authorize such a proceeding. The sole object of the petition in [48 Kan. 581] this action, and its sole prayer, is the appointment of a receiver to take charge of this street railway and manage it under the orders and......
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Thomas v. First Nat. Bank of Tecumseh, Case Number: 1448
...of its suit in replevin, defendants could at once have sued on the replevin bond. Manning v. Manning, 26 Kan. 98; McKey v. Lauflin, 48 Kan. 581, 30 P. 16. The defendants, however, have a right to insist on a trial and judgment, notwithstanding the dismissal. McVey v. Burns, 14 Kan. 291. And......
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Boller v. Davis, 36616.
...that was not his only remedy, for after a voluntary dismissal he might commence an independent action on the bond. In McKey v. Lauflin, 48 Kan. 581, 30 P. 16, it was held that where a party commences an action in replevin and obtains possession of the property in dispute and then voluntaril......
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Fluker v. Emporia City Ry. Co.
...the corporation, and there is no fact found by the trial court that would authorize such a proceeding. The sole object of the petition in [48 Kan. 581] this action, and its sole prayer, is the appointment of a receiver to take charge of this street railway and manage it under the orders and......
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Thomas v. First Nat. Bank of Tecumseh, Case Number: 1448
...of its suit in replevin, defendants could at once have sued on the replevin bond. Manning v. Manning, 26 Kan. 98; McKey v. Lauflin, 48 Kan. 581, 30 P. 16. The defendants, however, have a right to insist on a trial and judgment, notwithstanding the dismissal. McVey v. Burns, 14 Kan. 291. And......