Miller v. Dixon

• Citation: 42 P. 1014,2 Kan.App. 445
• Decision Date: 01 October 1895
• Docket Number: 42
• Parties: GEORGE L. MILLER et al. v. THOMAS DIXON
• Court: Court of Appeals of Kansas

42 P. 1014

2 Kan.App. 445

GEORGE L. MILLER et al. v. THOMAS DIXON

No. 42

Court of Appeals of Kansas, Northern Department, Central Division

October 1, 1895

Opinion Filed December 14, 1895.

MEMORANDUM.--Error from Geary district court; M. B NICHOLSON, judge. Action brought by Thomas Dixon against George L. Miller and W. H. Mackey, jr., as sheriff of Geary county, to enjoin the sale of a certain city lot. Judgment for plaintiff. Defendants bring the case here. Affirmed. The facts are sufficiently stated in the opinion herein, filed December 14, 1895.

Judgment affirmed.

J. R McClure, for plaintiffs in error.

Thomas Dever, and John E. Hessin, for defendant in error.

CLARK J. All the Judges concurring.

OPINION

CLARK, J.:

On the 9th day of February, 1887, one of the plaintiffs in error, George L. Miller, commenced an action in the district court of Geary county to recover from Ida Blue the sum of $ 1,200 claimed by him as damages which he alleged he had sustained through her wrongful acts. An order of attachment was issued in said action at the instance of Miller, and on February 15, 1887, levied on lot 9, in block 39, in the city of Junction City. On the 30th day of March thereafter a trial was had in said action before a jury, which resulted in a verdict in favor of the defendant, Blue, and judgment was thereafter rendered against the plaintiff for costs. This judgment was, at the April session of the January term, 1890, of the supreme court, reversed, and a new trial was awarded, which resulted in a judgment, at the October term, 1890, in favor of the plaintiff for $ 1,200, and an order was issued for the sale of said attached property to satisfy said judgment. Thereafter, the plaintiff in error W. H. Mackey, jr., as sheriff of said Geary county, in pursuance of the said judgment and order of sale, duly advertised said lot 9 for sale to satisfy said judgment. On the 23d day of April, 1887, the defendant in error, Thomas Dixon, became the owner of said lot 9 by a conveyance from one Cullinan, to whom Ida Blue had prior thereto conveyed the same, and on the 13th day of December, 1890, Thomas Dixon brought this action in the district court of Geary county against the plaintiffs in error to enjoin the sale of said lot 9, alleging in his petition that at the time of the commencement of the action he was, and for a long time prior thereto had been, the owner and in possession of said premises; and that Miller, by virtue of a supposed claim in and to the same, together with the defendant Mackey, as sheriff, had caused the premises to be advertised for sale; and, unless they were restrained from so doing, their further proceeding therein would cast a permanent cloud upon his title to the property; and he asked that the defendant Miller be required to show what claim, if any, he had upon the premises, alleging that the same was adverse and inferior in all respects to his title; and that the defendants in that action be restrained and enjoined from selling the premises until the final action of the court. A temporary injunction was allowed upon the filing of the petition, but it was afterward dissolved upon the motion of the defendants. Upon the trial of the action judgment was rendered in favor of the plaintiff below, enjoining the defendants from selling or attempting to sell said property; and to reverse this judgment the defendants, as plaintiffs in error, have brought the case to this court by petition in error.

Several questions have been raised by the defendant in error as to the regularity or legality of the attachment proceedings but, as stated by counsel for plaintiffs in error in his brief, the real question submitted to this court is as to whether or not the property attached on February 15, 1887, could be sold to satisfy the judgment that was...