Throop v. Maiden

• Decision Date: 11 November 1893
• Citation: 34 P. 801,52 Kan. 258
• Parties: CHARLES THROOP, as Deputy Sheriff of Butler County, et al., v. JACOB B. MAIDEN
• Court: Kansas Supreme Court

34 P. 801

52 Kan. 258

CHARLES THROOP, as Deputy Sheriff of Butler County, et al., v. JACOB B. MAIDEN

Supreme Court of Kansas

November 11, 1893

Error from Butler District Court.

REPLEVIN by Maiden against Schram, as sheriff, and Throop, as deputy sheriff. At the March term, 1890, the plaintiff had judgment and defendants come to this court. The facts appear in the opinion.

Judgment affirmed.

W. A Phipps, and Redden & Schumacher, for plaintiffs in error:

Whether the plaintiff was entitled to a recovery under the landlord's lien, or under the chattel mortgage, or not at all, was a question of fact, and, being such, it should have been submitted to the jury.

It will not be seriously contended that there was an actual and continued change of possession of the crop mortgaged. Hence under the statutes, the mortgage was absolutely void as against the defendant who attached the property before the filing of the mortgage. Ramsey v. Glenn, 33 Kan. 271; Jewell v. Simpson, 38 id. 362.

Section 26 of the landlord and tenant act provides that the person entitled to the rent may recover from the purchaser of the crop, or any part thereof, with notice of the lien, the value of the crop purchased, to the extent of the rent due, and damages; but this does not give the landlord a right to an action of replevin. The section does not so state; neither does it follow by implication. But can this court say that, as a matter of law, the defendant had notice of the lien? Most certainly not. That was one of the disputed questions of fact on which we contended that the preponderance of the evidence was with us; but, in any event, there was contradictory evidence, and the court, in a jury trial, has nothing to do with reconciling contradictions in evidence. Williams v. Norton, 3 Kan. 296. Much less can it take a case from the jury and say the evidence establishes a given proposition. Maduska v. Thomas, 6 Kan. 153; Thornburgh v. Cole, 27 id. 490, 499; Kelley v. Ryus, 48 id. 120. Upon all of these matters there was a substantial controversy--such a one as a jury must pass upon, and such a one that the defendant had a right to go before the jury and argue the question. Douglass v. Hill, 29 Kan. 527.

Shinn & Knowles, for defendant in error:

We think the case of Lyeth v. Griffis, 44 Kan. 159, is decisive against the levy in this case.

An attempted levy held insufficient and inoperative because of failure of officer to reduce to possession. Crisman v. Dorsey, 21 P. 920; and 4 L. R. A. 664. This last case is upon all fours with the case at bar. That an officer may abandon levy, see Dixon v. Sewing Machine Co., 5 L. R. A. 659; and bailee abandoning the property releases attachment. Russell v. Major, 29 Mo.App. 167. Lien of attachment lost if officer fails to retain custody of property. Hardin v. Sisson, 36 Ill.App. 383. Absence of levy as required by law, court acquires no jurisdiction over property. Root v. Columbus H. W. T. Co., 12 N.E. 812. And where an attachment is abandoned and subsequently levied, it is not connected with the previous levy so as to retain priority over an intervening claim. Smith v. Whitefield, 67 Tex. 124, 2 S.W. 822. It cannot therefore be claimed that, as the officer in this case afterward sold the property, his right related back to the time of the original levy.

JOHNSTON, J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action of replevin brought by Jacob B. Maiden against Charles Schram, as sheriff of Butler county, and Charles Throop, his deputy, to recover the possession of 24 acres of corn which had been grown upon the farm of Maiden. On February 12, 1889, this farm was leased by Maiden to one Carleton until March of the following year, for a cash rental of $ 130, of which $ 65 was payable on the 1st day of December, 1889, and the balance on the 1st day of March, 1890. By the terms of the written lease, it was agreed that the payment of the rent should be secured by a chattel mortgage on the crops grown on the land, and such a mortgage was executed. Carleton planted and cultivated 40 acres of corn upon the farm, a portion of which is in controversy in this action. In an action brought against Carleton an order of attachment was issued, and an attempt made to levy the same upon the corn on October 9, 1889. The chattel mortgage taken by Maiden was filed for record October 14, 1889. In pursuance of the attempted levy, a sale of the corn was made on December 14, 1889, for the sum of $ 144. Maiden claims the property by virtue of a landlord's lien and the chattel mortgage which had been executed by Carleton. At the conclusion of the trial the court directed a verdict in favor of Maiden, which was accordingly returned. Several errors are assigned, but the only assignment which is deemed to be substantial is the action of the court in taking the case from the jury.

It is contended that the landlord's lien which might have existed in favor of Maiden was waived by the taking of the chattel mortgage, and that, as the mortgage was not filed for record until after the levy was made, Maiden had no lien or special ownership in the property. The testimony tended to show knowledge of the interested parties of the lien or interest claimed by Maiden, but perhaps the evidence on this point is not sufficiently clear to warrant the taking of the case from the jury. On the other side, it is contended that it is shown beyond dispute that no legal levy was made, and that the property was never in the custody of the officer or of the law, or, at least, that it was not in such custody after the chattel mortgage had been filed for record. We are of opinion that there was no valid attachment of the property in question, and that, as Maiden's mortgage, after being recorded, entitled him to the possession of the property, the questions relating to the enforcement of the landlord's lien are not important, and require no consideration. To constitute a valid attachment of personal property, it is necessary for the officer, where he can obtain possession, to take...