Smith v. McCarthy

• Citation: 18 P. 204,39 Kan. 308
• Parties: MARY SMITH v. FRANK MCCARTHY
• Decision Date: 04 May 1888
• Court: United States State Supreme Court of Kansas

18 P. 204

39 Kan. 308

MARY SMITH v. FRANK MCCARTHY

Supreme Court of Kansas

May 4, 1888

Error from Atchison District Court.

THIS was an action by Frank McCarthy against Mary Smith, to recover the sum of $ 350. The allegations of the petition are as follows:

"The plaintiff avers that on the first day of October, 1885, one Jerry McCarthy, being at that time indebted to this plaintiff in the sum of nine hundred and twenty-five dollars, made executed and delivered to the plaintiff his certain chattel mortgage in writing, a copy of which, with all the indorsements thereon, is attached hereto, marked 'Exhibit A,' and made a part of this petition; that said chattel mortgage was forthwith, on the delivery of the same deposited by the plaintiff in the office of the register of deeds of Atchison county, Kansas, where said chattel property was situated and the mortgagor resided; that on or about the 28th day of October, 1885, while said chattel mortgage was in full force and effect, of record, and unpaid, the defendant by and through her duly-authorized and appointed agent, Ryan Smith, did take the fifty head of hogs mentioned and described in 'Exhibit A,' from the possession of the plaintiff mortgagor, Jerry McCarthy, without his consent, and without the consent of this plaintiff, and did convert the same to her own use and benefit; that the value of said fifty hogs was at said time, and now is, the sum of seven dollars a head, all of said hogs being of the value of three hundred and fifty dollars; that the plaintiff has duly demanded from the defendant the said hogs and all of them, which demand was refused; and that he also demanded the value of said hogs, to wit, the sum of $ 350, of and from defendant, which demand has been refused; that the plaintiff has a special ownership in and to said hogs to the amount of $ 925, being the amount of the chattel mortgage hereto attached. Wherefore, the plaintiff prays judgment against defendant for three hundred and fifty dollars, and costs of this action."

The defendant in due time filed an answer, which contained a general denial of the allegations of the petition. She further alleged that she was entitled to the hogs under a chattel mortgage executed to her by Jerry McCarthy, upon the hogs and other property, to secure the payment of the sum of $ 1,300 which he owed to her, and which amount was still due and unpaid. She also stated that the mortgage to plaintiff had been fully paid, and that the plaintiff had received from Jerry McCarthy other property which was included in defendant's mortgage, sufficient in value to satisfy the plaintiff's mortgage debt. She further answered by alleging that plaintiff, Frank McCarthy, was indebted to her upon a promissory note executed August 1, 1882, by the plaintiff jointly with others, in which he promised to pay one year after date, $ 370, with interest at 10 per cent from date, and that the defendant is the owner and holder of the note, and that it is wholly due and unpaid. It was further alleged, by way of set-off; that the plaintiff is indebted to her in the sum of $ 253.49 upon a judgment rendered December 22, 1885, in her favor and against plaintiff, before a justice of the peace of Atchison county, and that the judgment is in full force, unpaid, and unsatisfied. There was another allegation, that the plaintiff is indebted to her in the sum of $ 177.50, upon a liability upon an injunction bond, given in another action. The answer concluded with a prayer that the defendant recover from the plaintiff a judgment in the sum of $ 815.99, with interest and costs.

The reply of the plaintiff, in addition to a general denial, stated that in a former proceeding between the plaintiff and defendant to recover the possession of property included in the plaintiff's mortgage, the validity of the plaintiff's mortgage was sustained, and that of the defendant was held to be no lien or claim upon the property described in the plaintiff's mortgage. He also replied that the judgment mentioned in the defendant's answer had been fully paid and satisfied, and execution had been issued on the judgment, and that over $ 1,000 worth of personal property had been taken and sold to satisfy the judgment. He also alleged in his reply that the other demands and claims held by the defendant against the plaintiff had been fully paid and satisfied; and he further admitted the execution of the injunction bond, and alleged that the action in which the bond was given was pending and undetermined at the commencement of this action, and that no cause of action had arisen thereon before the commencement of the present suit.

A trial was had with a jury, on the 19th day of October, 1886. The defendant offered proof to sustain her claims and demands alleged by way of set-off to the plaintiff's cause of action, but the court rejected the testimony, and the defendant excepted. The trial resulted in a verdict and judgment in favor of the plaintiff for $ 300, and the defendant, as plaintiff in error, has...