Shaffer v. Knox
| Decision Date | 01 June 1898 |
| Docket Number | 378 |
| Citation | 53 P. 785,7 Kan.App. 182 |
| Parties | MARGARET A. SHAFFER v. JOHN D. KNOX, JR., et al |
| Court | Kansas Court of Appeals |
Opinion Filed July 8, 1898.
Error from Shawnee district court; Z. T. HAZEN, judge. Reversed.
ON the 17th day of February, 1891, John D. Knox and Mary D. Knox his wife, who had been doing business as John D. Knox & Co., being in failing circumstances and insolvent, made a deed of the lots in controversy, belonging to said John D Knox, in fraud of their creditors, to their minor son, John D. Knox, jr., and on the next day made a general assignment for the benefit of their creditors. On August 1, 1891, Thomas H. Bowers recovered a judgment against John D. Knox & Co. in the circuit court of Shawnee county for $ 901.52. An execution was issued on said judgment on September 23, 1891 and returned unsatisfied on September 25, 1891. On September 28, 1891, Bowers began a suit in said circuit court to set aside the deed to John D. Knox, jr., and to subject said lots to his judgment. This suit was, on February 22, 1892, decided in favor of the defendants upon the sole ground that Bowers's claim had been presented for allowance to the assignee under the assignment, and for that reason he could not maintain said suit. On March 11, 1892, an execution was issued on the Bowers judgment and levied on the lots in controversy, which were offered for sale and not sold for want of bidders. On January 7, 1893, another execution was issued on the judgment and levied upon the same property, and the property was appraised, advertised, and sold to James Enlow for $ 867. This sale was confirmed February 27, 1893, and a deed made and recorded.
On October 8, 1891, H. S. Shaffer began an action in the circuit court of Shawnee county upon a debt due from John D. Knox & Co. before said assignment, and attached the property in controversy. This attachment was sustained, and on March 14, 1892, judgment was rendered for the plaintiff therein for $ 3326.42, and an order made for the sale of the attached property. On May 12, 1892, an order of sale was issued on said judgment from the district court of Shawnee county, where a transcript had been duly filed. Under this order, the property was sold, without appraisement, to said Shaffer for $ 1201, that sum being more than two-thirds of the appraised value at the time the lots were attached. On July 20, 1892, this sale was confirmed and a deed made and properly recorded. On July 23, 1892, Shaffer began an action in the circuit court to set aside the deed to John D. Knox, jr., and, on December 21, 1892, he obtained a judgment setting the same aside and quieting his title to the lots in controversy.
On March 14, 1893, James Enlow began this action to quiet his title to said lots. This cause was heard on December 30, 1893, and taken under advisement until August 10, 1894, when the court made its special findings of facts and rendered judgment, August 14, 1894, thereon in favor of Margaret A. Shaffer and Olive A. Spencer, heirs at law of said H. S. Shaffer, who had died, the action having been duly revived in their names. Upon a motion of James Enlow, the judgment was, on October 15, 1894, set aside and a judgment rendered for Enlow, and it is to reverse this last judgment that this proceeding in error is brought.
Order reversed.
J. B. Larimer, and John v. Abrahams, for plaintiff in error.
Isenhart & Alexander, and E. G. Wilson, for defendants in error.
The contention of the plaintiff in error is that the court rendered judgment, upon the findings of fact, for the wrong party; that the judgment should have been in favor of the Shaffer title instead of the Enlow title, and for this several reasons are urged.
The first contention is that the judgment in the action brought by Bowers in the circuit court to subject the property to the payment of his debt is res judicata as to Bowers and all persons claiming under his judgment. It seems to be conceded by the defendant in error that if said action had been tried and decided upon its merits the contention of the plaintiff in error would be correct, but attention is called to the fact that it was decided solely upon the ground that, as the Bowers claim had been presented to the assignee for allowance, an action in aid of execution could not be maintained. If we concede the correctness of this contention and that said judgment was rendered solely upon that ground, as found by the court below, and said judgment was erroneous, still it was an adjudication of the right of the plaintiff in that case to subject the lots in controversy to the payment of his debt, and as such, until appealed from or reversed, becomes the law of that case and estops him from further pursuing said property for such purpose, and any proceedings had for that purpose are void.
The next questions at issue herein are: Where real property is attached and ordered sold under a judgment...
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Given v. Owen
...be sold "under the same restrictions as if the same had been levied on by execution." ¶4 But our attention is called to Shaffer v. Knox et al., 7 Kan. App. 182, 53 P. 785, in which case it is said in the syllabus:"A sale of attached property under an order of sale issued after final judgmen......
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Given v. Owen
... ... [175 P. 346] ... as if the same had been levied on by execution." ... But our ... attention is called to Shaffer v. Knox et al., 7 ... Kan. App. 182, 53 P. 785, in which case it is said in the ... syllabus: ... "A sale of attached property under an order of ... ...
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