The Central State Bank v. Walker

• Decision Date: 01 February 1898
• Docket Number: 248
• Citation: 53 P. 379,7 Kan.App. 748
• Parties: THE CENTRAL STATE BANK, OF GENESEO, KAN., FRANK FOSTER AND BILLA STODDARD v. BYRON WALKER, FRANK WALKER, BYRON WECKMAN, JOHN WALKER, LEONARD MCLAUGHLIN, AND CLARK CONKLING
• Court: Kansas Court of Appeals

53 P. 379

7 Kan.App. 748

THE CENTRAL STATE BANK, OF GENESEO, KAN., FRANK FOSTER AND BILLA STODDARD v. BYRON WALKER, FRANK WALKER, BYRON WECKMAN, JOHN WALKER, LEONARD MCLAUGHLIN, AND CLARK CONKLING

No. 248

Court of Appeals of Kansas, Southern Department, Western Division

February 1, 1898

Opinion Filed May 19, 1898

Error from Rice district court: ANSEL R. CLARK, judge. Reversed.

Judgment reversed and cause remanded.

Sam. Jones, for plaintiffs in error.

C. F Foley, for defendants in error.

OPINION

MILTON, J.:

The defendants in error, as plaintiffs below, sued jointly to recover $ 3500 from the plaintiffs in error, as defendants for an alleged conversion by the latter of 3500 bushels of wheat belonging to such plaintiffs. Foster was sheriff and Stoddard deputy sheriff of Rice county, and as such officers had levied an order of attachment upon the wheat in the elevator belonging to the Central Kansas Grain Company, at Geneseo, in that county, the order having been issued in an action brought by the Central State Bank, of Geneseo, against the grain company. John S. Gibson, cashier of the bank, and Coyle Bros. were among the original defendants, but were dropped from the case when the court sustained their separate demurrers to the evidence of the plaintiffs.

Substantially the only question presented for review is the alleged misjoinder of parties plaintiff and of causes of action in the petition. The defendants raised this question by a demurrer, by answer, and by an objection to the introduction of testimony under the petition. The petition alleged that the plaintiffs severally deposited various quantities of wheat at divers times in an elevator owned and operated by the grain company, the total being 4200 bushels; that this wheat, in accordance with the custom of that locality, was mixed with other wheat, and frequent shipments were made by the grain company from the wheat stored in the elevator; that the wheat so deposited was held "as and for the wheat of plaintiffs," the grain company intending to keep on hand an amount equal to that deposited by plaintiffs; that through its fault, the quantity was reduced to about 3500 bushels prior to February 10, 1892; that on that day the grain company executed and delivered to the plaintiffs a written instrument as follows:

"ATCHISON, KAN., February 10, 1892.

"The undersigned having held for storage wheat belonging to and for Coyle Bros., John Walker, Byron Walker, Frank Walker, Byron Weckman, Clark Conkling, and Leonard McLaughlin, and the same having been attached for the debts of the undersigned, but in fact not the property of the undersigned, yet to secure said parties and to protect them, if there be any legal question as to their ownership of such wheat, the undersigned hereby sells and assigns and transfers to said parties said wheat, being all the wheat in the Geneseo elevator, operated by the undersigned and held and left for and as the property of the said parties, this transfer being pro rata of the ownership held and understood to belong to said parties.

CENTRAL KANSAS GRAIN COMPANY.

By R. W. QUADE, Manager."

It was further alleged that by virtue of this instrument ...