Overton v. Warner
| Decision Date | 12 December 1903 |
| Docket Number | 13,343 |
| Citation | 74 P. 651,68 Kan. 96 |
| Parties | EARLIE OVERTON v. J. A. WARNER, as Sheriff, etc., et al |
| Court | Kansas Supreme Court |
Decided July, 1903.
Error from Hamilton district court; WILLIAM EASTON HUTCHISON judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
REPLEVIN -- Property is in Custodia Legis Notwithstanding Redelivery Bond. Property taken from an officer under a writ of replevin and returned to him upon the giving of a redelivery bond is in custodia legis, and the sale of it upon an execution issued after it has been so taken, and during the pendency of the replevin proceedings, may be prevented by an action of injunction.
George Getty, and George J. Downer, for plaintiff in error.
U. T. Tapscott, Hoskinson & Hoskinson, and Whitcomb & Hamilton, for defendants in error.
JOHNSTON, C. J. All the Justices concurring. MASON, J., not sitting, having been of counsel.
This is a companion case of O'Loughlin v. Overton, immediately preceding, and was brought to enjoin the sale of cattle claimed by Earlie Overton, upon an execution issued on the judgment obtained by John O'Loughlin against Emma Overton as administratrix of the estate of her deceased husband. In his petition for injunction plaintiff alleged a number of grounds of invalidity of the judgment, and, as an additional reason why it was not enforceable, he stated that, after the seizure of the cattle on the original execution and before the issuance of the alias execution on which it was proposed to sell them, the plaintiff instituted an action in replevin to recover from Warner, as sheriff, the cattle proposed to be sold, and that notwithstanding the issuance and service of a summons upon him, and the pendency of the replevin action to try the rights of property in the cattle, the sheriff was still attempting to sell them on execution. It was further alleged that in the event that the sheriff should sell the cattle under the execution, and even if Earlie Overton were successful in the replevin action, the cattle so sold could not be returned to him under the judgment in replevin.
On the hearing to dissolve the temporary injunction the parties stipulated and agreed that in the above-mentioned replevin action the cattle claimed by plaintiff were taken from the sheriff on a writ of replevin; that they were valued at $ 2650; that the execution creditor, O'Loughlin, gave a redelivery bond in double the alleged value of the cattle, which was approved. But the motion to dissolve the temporary injunction was overruled. Afterward, upon a demurrer of defendant, the court ruled that the plaintiff's petition did not state facts sufficient to constitute a cause of action, and, the plaintiff electing to stand upon the demurrer, judgment was rendered for the defendant and the cause was dismissed.
If the cattle were taken and held under a writ of replevin they were in custodia legis and necessarily beyond the...
To continue reading
Request your trial