Struthers v. Fuller

• Decision Date: 11 April 1891
• Citation: 45 Kan. 735,26 P. 471
• Parties: JOHN F. STRUTHERS v. A. M. FULLER et al
• Court: Kansas Supreme Court

26 P. 471

45 Kan. 735

JOHN F. STRUTHERS v. A. M. FULLER et al

Supreme Court of Kansas

April 11, 1891

Error from Shawnee District Court.

THE opinion states the case.

Judgment affirmed.

Jetmore & Jetmore, and G. A. Huron, for plaintiff in error. D.E.

Sowers and W. R. Hazen, for defendants in error.

SIMPSON C., All the Justices concurring.

OPINION

SIMPSON, C.

This action was brought by John F. Struthers on the official bond of A. M. Fuller, as sheriff of Shawnee county, and Joab Mulvane, John Sutherine, and J. W. Stout, sureties on the bond, to recover the sum of $ 1,182.25 damages for the unlawful conversion of plaintiff's goods and chattels attached by the defendant as such sheriff in favor of Brown Bros. against and as the property of Schermerhorn Bros. At the January term, 1888, the case was tried by a jury and a verdict returned, and a judgment rendered for the defendants. The plaintiff, having made an unsuccessful motion for a new trial, brings the case here for review. The errors assigned are: First. Error of the court in overruling the motion of plaintiff for a continuance of the case. Second. Error in refusing to admit competent and material evidence offered by the plaintiff. Third. Error in admitting illegal and incompetent evidence for the defendants. Fourth. The verdict is not sustained by the evidence. Fifth. The verdict is contrary to law.

I. As to all the errors assigned, except the first, the record is in such condition that we cannot consider them. All these assignments of error are such as relate to matters occurring on the trial, and for which a new trial was asked, and the record must show that the action of the trial court overruling the motion for a new trial is assigned as error or no question is properly raised for the consideration of this court. (Clark v. Schnur, 40 Kan. 72, 19 P. 327, and cases cited therein.)

II. The plaintiff below made a motion for a continuance, and supported it by an affidavit reciting that he could not go to trial safely without the presence of a material witness, one S. B. Maxwell; that he expected to prove by said Maxwell that the plaintiff purchased in good faith from Schermerhorn Bros. the personal property for the unlawful conversion of which this suit is brought; that said witness will testify that in the month of August, 1887, he resided in the city of Topeka, at No. 520 Harrison street, where he was keeping a boardinghouse, and that P. V. Schermerhorn hoarded with him; that on the 11th day of August, 1887, at about 6 o'clock P. M., he had a conversation with Schermerhorn with reference to an item printed in the Evening Journal of that date, headed "Rather Mixed," and mentioned the fact that a writ of attachment had that day been levied upon the goods held by the plaintiff to satisfy a claim for over $ 1,600, in which conversation he said to Schermerhorn, that according to this statement in the Journal, he did not sell out to Struthers, but made an assignment to him, to which Schermerhorn replied, "This is not true; I made a fair and square sale to Struthers, and have got all my pay." Whereupon Maxwell said to him, ...