Steele v. Currie

• Decision Date: 05 July 1930
• Docket Number: 29,123
• Citation: 131 Kan. 32,289 P. 444
• Parties: GEORGE A. STEELE et al., Appellants, v. ANNA D. CURRIE, Appellee
• Court: Kansas Supreme Court

289 P. 444

131 Kan. 32

GEORGE A. STEELE et al., Appellants, v. ANNA D. CURRIE, Appellee

No. 29,123

Supreme Court of Kansas

July 5, 1930

Decided July, 1930.

Appeal from Woodson district court; FRANK R. FORREST, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. LANDLORD AND TENANT--Damages for Wrongful Ejectment--Pleading--Sufficiency. In an action for damages plaintiffs alleged that while they were tenants in lawful possession of a farm, defendant, acting through her attorneys of record, and without any lawful order of court, wrongfully caused a writ of assistance to be issued whereby they were evicted from the farm. Held, that plaintiffs' petition stated a cause of action as against defendant's demurrer thereto; and held, also, that the matter informally supplied by appellee pertaining to prior litigation between the parties to explain the issuance of the writ was not inconsistent with the allegations of plaintiffs' petition nor would it render plaintiffs' cause of action demurrable.

2. JUDGES--Disqualification--Witness. Under the state of the case disclosed by record, the overruling of plaintiffs' motion for a change of judges on the ground that the presiding judge was a material witness was not error.

G. H. Lamb and W. E. Hogueland, both of Yates Center, for the appellants.

F. J. Oyler and G. R. Gard, both of Iola, for the appellee.

OPINION

DAWSON, J.:

Plaintiffs brought this action for damages for being wrongfully evicted from a farm through a writ of assistance illegally procured from the clerk of the district court of Woodson county at the instigation of defendant and her attorneys.

Plaintiffs alleged that they were lawfully in possession of defendant's 150-acre farm in Woodson county for the crop year of 1927 under a contract of lease expiring March 1, 1928. By its terms plaintiffs agreed to pay $ 60 and the taxes on the farm for 1926. Plaintiffs alleged that they had paid the $ 60 and had paid the taxes and had performed all the other covenants and agreements of the lease, and had planted suitable crops and had partially harvested the hay and alfalfa grown on the premises. Plaintiffs alleged that in disregard of their rights under the lease, defendant, acting by her attorneys of record, wrongfully and without lawful authority caused a writ of assistance to be issued out of the district court of Woodson county to evict the plaintiffs from the premises, and pursuant thereto and at the special personal instance and request of defendant, on September 29, 1927, the sheriff evicted plaintiffs and their chattels from the premises. They also alleged that at the time of their eviction--

"The writ of assistance herein referred to was not issued by any lawful order of any court having jurisdiction to issue such writ, but was issued and caused to be served solely and alone upon the request of the defendant herein and her attorneys as hereinbefore set out."

The petition set out items of damage, loss, confiscation of crops and other general and special damages sustained by their eviction, aggregating $ 2,450, for which sum and for punitive damages plaintiffs prayed judgment.

Defendant's demurrer to this petition was sustained, and plaintiffs appeal.

This is another of that class of cases which not infrequently comes to this court which can be more readily disposed of by considering what argument appellee can advance to support the judgment than to examine in detail what errors can be urged against it. Appellee would justify the judgment by extended references to other litigation between these parties indicated by the writ of assistance, a copy of which was attached to plaintiffs' petition. So far as that other litigation is relevant, it should have been brought into this record by answer or by motion requiring plaintiffs to make their petition more definite and certain in respect to the earlier litigation referred to in the writ of assistance. Here we have nothing before us but plaintiffs' petition. It alleges that defendant and her attorneys wrongfully and illegally, and without any order of any court, caused such writ of assistance to issue whereby they were evicted and sustained damages. Defendant's demurrer to that petition concedes the truth of that allegation. The demurrer in effect says, "What plaintiffs allege is true, but what does that amount to?" And the judgment of the court sustaining the demurrer, in effect, says, "It amounts to nothing." Justice is to be administered in this commonwealth in no such fashion. Our constitution guarantees that for injuries suffered in person or property all persons shall have remedy by due course of law. The remedy provided by law for such wrongs as plaintiffs complained of is the civil action which plaintiffs properly began and which sufficiently stated this cause of action as against a demurrer.

Looking into the matters set out in defendant's counter abstract, however, it would appear that there had been another lawsuit between these litigants, instituted in June, 1927, wherein the owner of the farm, Anna D. Currie, charged that Steele and wife were committing waste, and an order was made in that case on September 17, 1927, decreeing that Steele and wife should do certain things, the exact nature of which is not shown. The judgment roll recites:

"That it is the duty of the defendant [Steele and wife] to carry out the orders heretofore made, and in the event that the defendant fails to carry out the orders heretofore made as the same now stand, that the plaintiff shall have a writ of assistance to enforce the making of the repairs upon the...