The Merchants National Bank of Kansas City v. Kopplin

• Decision Date: 01 May 1895
• Citation: 42 P. 263,1 Kan.App. 599
• Parties: THE MERCHANTS NATIONAL BANK OF KANSAS CITY, MO., v. OTTO KOPPLIN et al
• Court: Kansas Court of Appeals

42 P. 263

1 Kan.App. 599

THE MERCHANTS NATIONAL BANK OF KANSAS CITY, MO., v. OTTO KOPPLIN et al

Court of Appeals of Kansas, Southern Department, Central Division

May 1, 1895

Opinion Filed October 23, 1895.

MEMORANDUM.--Error from Sedgwick court of common pleas; JACOB M. BALDERSTON, judge. Action in attachment by The Merchants National Bank of Kansas City, Mo., against Otto Kopplin, Edia Kopplin, interpleader. Trial was had on motion of interpleader to discharge the attachment. Motion sustained. The plaintiff brings the case to this court. Affirmed. The material facts are stated in the opinion, filed October 23 1895.

Judgment affirmed.

Ed O'Bryan, for plaintiff in error.

T. B. Wall, and Otto G. Eckstein, for defendants in error.

OPINION

DENNISON, J.:

This action was originally brought in the court of common pleas of Sedgwick county, Kansas, by this plaintiff in error against Otto Kopplin, on December 23, 1890. An order of attachment issued at the commencement of said action, and was levied upon the undivided one-half of lots 20, 22, 24 and 26, on North Market street, in the city of Wichita, in said Sedgwick county, as the property of said Otto Kopplin. On December 26, 1890, Otto Kopplin filed his motion to dissolve and vacate said attachment for the reason that the statements made in the affidavit of attachment were untrue, and on February 12, 1891, filed a supplemental motion to discharge on the ground that the property was his homestead. Both these motions were overruled. On February 26, 1891, Edia, wife of Otto Kopplin, obtained leave to file an interpleader asking to dissolve the attachment on the ground that the same was occupied as a homestead by herself and husband, and to have her rights determined. She also filed a motion to discharge the attachment, alleging that she was the sole owner of the property before the commencement of plaintiff's action, and that she ever since had been and then was the owner thereof. On April 24, 1891, the court sustained the motion of Edia Kopplin to discharge said attachment. To the ruling of the court in sustaining said motion the plaintiff excepted, and brings the case here for review.

The plaintiff alleges two assignments of error: (1) The court erred in allowing Edia Kopplin to testify in her own behalf that the property attached was her homestead; (2) the court erred in sustaining the motion of Edia Kopplin to dissolve and vacate the attachment on said attached property. To sustain the first assignment of error the plaintiff claims that because the court overruled the motion of Otto Kopplin to discharge the attachment the question is res adjudicata. This position is not tenable. Edia Kopplin was not before the court, and her rights could not have been adjudicated. The court properly overruled the motion of Otto Kopplin to discharge the attachment as to the real estate of Edia Kopplin. "It is not competent for a defendant to move the court to discharge an attachment, or set aside a levy under an execution, on the ground that the property attached or levied upon does not belong to him, and it is error for a court to sustain such motion." ( Mitchell v. Skinner, 17 Kan. 563.)

In passing upon the second assignment of error only one question needs to be considered, and that is, Was Edia Kopplin the owner of the real estate levied upon? If she was, then the motion should have been sustained; if she was not, the motion should have been overruled, because the only ground for the motion was that she was the owner thereof. The evidence shows that the lots, which were contiguous and contained less than one acre of land, were first deeded to Otto Kopplin and John F. Knoblaugh, and on the 20th day of December, 1890, Otto Kopplin conveyed his undivided one-half interest in the said lots by deed to Edia Kopplin, which deed was recorded in the office of the register of deeds of Sedgwick county, Kansas, on December 22 1890; that on the said lots was a hotel of about 25 rooms, and that the said hotel was run by Kopplin and...