The Travelers Insurance Company v. Stucki

• Decision Date: 01 June 1896
• Docket Number: 119
• Citation: 46 P. 42,4 Kan.App. 424
• Parties: THE TRAVELERS INSURANCE COMPANY v. BENJAMIN J. STUCKI
• Court: Kansas Court of Appeals

46 P. 42

4 Kan.App. 424

THE TRAVELERS INSURANCE COMPANY v. BENJAMIN J. STUCKI

No. 119

Court of Appeals of Kansas, Southern Department, Eastern Division

June 1, 1896

Opinion Filed September 5, 1896.

MEMORANDUM.-- Error from McPherson district court; LUCIEN EARLE, judge. Action by Benjamin J. Stucki against The Travelers Insurance Company to recover a penalty for refusing to release of record a mortgage. Judgment for plaintiff. Defendant brings the case to this court. Reversed. The opinion herein was filed September 5, 1896.

The statement of the case, as made by JOHNSON, P. J., is as follows:

This suit was commenced on the 14th day of February, 1891, by the defendant in error in the district court of McPherson county to recover the statutory penalty for refusing to release a mortgage on real estate situated in that county. The plaintiff below alleges the borrowing of the money, the execution of the mortgage on lands to secure the payment thereof, the payment of the mortgage to E. G. Clark as agent for the mortgagee, demand for the release of the mortgage and the refusal to do so. As a second cause of action, the plaintiff below alleges that the mortgage is a cloud on his title, and that the defendant below wrongfully claims a lien on the mortgaged premises by virtue of such mortgage, and asks to have the mortgage canceled and satisfied of record and the cloud removed from his title.

At the commencement of this action the plaintiff below filed an affidavit, an undertaking for an attachment, and set out that the defendant below was a foreign corporation, and procured the issuing of an order of attachment against the property of defendant below, and caused the sheriff of McPherson county to seize the lands and tenements of said defendant under the attachment.

The plaintiff below also filed an affidavit to obtain service upon the said insurance company by publication, alleging that it was a nonresident of the state of Kansas, and that service of summons could not be obtained upon it in this state. Publication was duly made on March 31, 1891. The insurance company made a special appearance and filed a motion to set aside the service by publication, for the reason that it was an insurance company, and, as such insurance company, had complied with the laws of the state of Kansas, and that personal service could be had upon it. The motion was overruled and the insurance company duly excepted. Defendant below also moved to dissolve the attachment, which motion was overruled and exceptions taken. Defendant below then filed a general demurrer to the first cause of action in the petition of the plaintiff below, for the reason that the cause of action was barred by the statute of limitations. The demurrer was overruled, and the insurance company duly excepted, and afterward filed a verified answer denying the agency of Clark, and also the payment of the mortgage, together with a cross-petition, asking judgment on the note and for foreclosure of the mortgage. To this answer the plaintiff below filed his reply. Upon these issues the case was tried before the court and a jury and resulted in a verdict for the plaintiff below. The jury also returned with their verdict special findings of fact. Defendant below filed a motion for a new trial, which was overruled and exceptions taken. Judgment was rendered by the court for the plaintiff below in accordance with the verdict of the jury. The insurance company made a case and filed it in the supreme court, and the record was duly certified to this court for review.

Judgment reversed.

Simpson & Johnson, for plaintiff in error.

Grattan & Grattan, for defendant in error.

JOHNSON P. J. All the Judges concurring.

OPINION

JOHNSON, P. J.:

This action was brought by Benjamin J. Stucki against the Travelers Insurance Company to recover $ 200, as penalty for refusing on demand to release and discharge of record a certain mortgage on real estate given by Stucki and his wife to the Travelers Insurance Company, and to remove a cloud upon his title by reason of such mortgage. The mortgage was given November 15, 1887. The petition of the plaintiff below alleges that, on the 13th day of November, 1890, he paid to one E. G. Clark the full amount of said note and mortgage; that Clark was the duly authorized agent of the insurance company; that on November 3, 1893, he made demand upon the insurance company to release the mortgage; that the demand was by letter to the insurance company, and was received by it at Hartford, Conn.

The plaintiff in error states in its brief five specifications of error for which it asks the consideration of this court. We will consider only such of the assignments of error as we deem material to a full determination of this case.

The first assignment of error complained of is that the court erred in overruling the motion of defendant below to dissolve the attachment. This action was brought under chapter 175, Laws of 1889, which pro-rides:

"When any mortgage of real property shall have been paid, it shall be the duty of the mortgagee or his assignee, within 30 days after demand, in case demand can be made, by the mortgagor, his heirs or assigns, or by any one acting for such mortgagor, his heirs or assigns, to enter satisfaction or cause satisfaction of such mortgage to be entered of record without charge; and any mortgagee or assignee of such mortgagee who shall refuse or neglect to enter satisfaction of such mortgage as is provided by this act shall be liable in damages to such mortgagor or his grantee or heirs in the sum of $ 100, together with a reasonable attorney's fee for preparing and prosecuting such suit; and the plaintiff in such action may recover any additional damages that the evidence in the case will warrant. Civil actions may be brought under this act before any court of competent jurisdiction, and attachment may be had as in other cases." (Gen. Star. 1889, P 3892.)

[4 Kan.App. 428] Paragraph 4273, General Statutes of 1889, provides:

"The plaintiff in a civil action for the recovery of money may, at or after the commencement...