Peterson v. Woollen

• Decision Date: 11 June 1892
• Citation: 30 P. 128,48 Kan. 770
• Parties: THERESA PETERSON v. J. H. WOOLLEN et al
• Court: Kansas Supreme Court

30 P. 128

48 Kan. 770

THERESA PETERSON v. J. H. WOOLLEN et al

Supreme Court of Kansas

June 11, 1892

Error from Jewell District Court.

THE opinion contains a sufficient statement of the facts.

Judgment affirmed.

S. D Decker, for plaintiff in error.

C Angevine, for defendants in error.

STRANG C. All the Justices concurring.

OPINION

STRANG, C.:

January 22, 1889, the plaintiff, who was plaintiff below, filed her petition in replevin alleging absolute ownership in herself of certain personal property, the right to immediate possession, and wrongful detention of the same. The answer admitted the taking of the property bye the defendant, Woollen, sheriff of the county, on an attachment issued in the suit of Case, Bishop & Co. against Henry Peterson, husband of the plaintiff, but as an answer to the plaintiff's claim to said property, and as matter of estoppel, alleged that when said property was attached as the property of Henry Peterson, the plaintiff joined said Henry Peterson in executing a redelivery bond for the return of said property. To the answer the plaintiff replied that the defendant should not be allowed to avail himself of the matter of estoppel set out in his answer because the officer having such property in his hands as the property of Henry Peterson obtained her signature to said redelivery bond by fraudulent misrepresentations. A demurrer was filed to the reply, alleging that the facts therein stated were insufficient to avoid the answer. This demurrer was sustained. The plaintiff refused to plead over and brings the case here for error.

The only question in the case is, was the plaintiff estopped from recovering in her action by reason of having joined her husband in the execution of a redelivery bond when the same property was attached as his property in a proceeding against him in favor of the defendants Case, Bishop & Co.? It is well settled that signing a redelivery bond as surety estops the surety from subsequently claiming the property as against the sheriff or the attachment plaintiff, unless the surety was induced to sign the redelivery bond by a fraudulent misrepresentation of facts. (Sponenbarger v. Lemert, 23 Kan. 55; Haxtun v. Sizer, 23 id. 310; Wolf v. Hahn, 28 id. 588.)

In this case the defendants claim that the plaintiff is estopped from claiming the property described in her petition by having signed the redelivery bond with her husband, when the property was attached in a proceeding against him by Case Bishop & Co. The plaintiff admits signing the redelivery bond, but says she is not thereby estopped from claiming the property, because she was induced to sign the redelivery bond by fraudulent misrepresentations made by the officer who took the bond. The defendants answer this proposition by saying that there was no misrepresentation of facts by the officer when the plaintiff signed the redelivery bond, and that any statement by the officer as to the effect of her signing the bond was simply the opinion of the officer as to the legal effect of her act, and will not aid her to avoid the estoppel created by signing the redelivery bond. The allegation in the reply is, that the officer told the plaintiff that "if she would sign the bond they would let her keep the property, but that unless she signed the bond they would take the property from her; but if she signed they would stand between her and all harm, and she would save her property; that the signing of said bond would not affect her rights in such property, nor prevent her from...