Vaughn v. Hixon

• Decision Date: 11 February 1893
• Citation: 50 Kan. 773,32 P. 358
• Parties: T. A. VAUGHN v. JOHN W. HIXON, as Sheriff of Seward county, et al
• Court: Kansas Supreme Court

32 P. 358

50 Kan. 773

T. A. VAUGHN v. JOHN W. HIXON, as Sheriff of Seward county, et al

Supreme Court of Kansas

February 11, 1893

Error from Meade District Court.

REPLEVIN by Vaughn against Hixon, as sheriff, and others. At the September term, 1889, defendants had judgment, and plaintiff brings error. The opinion states the facts.

Judgment affirmed.

W. W Noffsinger, and R. C. Palmer, for plaintiff in error.

Rossington Smith & Dallas, and Clifford Histed, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an action of replevin, brought by T. A. Vaughn, claiming to be the owner of certain goods, wares, and merchandise, of the alleged value of $ 1,000, located in Fargo Springs, in this state. The property had previously been attached in an action instituted by Smith, Heddens & Co., against Mills Bros.; and, while the property was in the possession of the sheriff, the goods were replevied. The action was originally brought in Seward county, but was afterward taken on change of venue to Haskell county, and subsequently, by agreement of parties, was transferred to Meade county, where, on the 17th day of September, 1889, the case was tried by the court, a jury being waived, and judgment rendered for the defendants. Plaintiff below excepted to the rulings and judgment of the trial court and brings the case here.

It is contended that there were no sufficient reasons presented to the district court of Seward county to grant a change of venue. The change having been granted, this court will not interfere. The granting of a change of venue in a civil action is to a great extent within the discretion of the trial court; and where it does not appear that such discretion was abused, or that any substantial right of the objecting party was materially affected by the change, this court will not reverse an order of the district court granting the change, although it may not appear that the district court was clearly bound to do so. (Civil Code, § 56; Waterman v. Kirkwood, 17 Kan. 9.) Further, the record shows that after the venue was changed to Haskell county the parties agreed in open court for the trial of the action to take place in Meade county. The trial took place, by consent, in that county.

It is next contended that the district court erred in overruling the motion for a new trial, because of a want or failure of evidence to sustain the judgment. The trial court made a general finding that the plaintiff was not the owner of the goods, wares and merchandise in controversy at the commencement of the action, and that he was not entitled to the possession thereof; that his pretended purchase of the stock of goods was without valuable consideration, and that the pretended sale to him by Mills Bros. was fraudulent. The court made the further finding that the defendants were in the lawful possession of the stock of goods at the commencement of the action, under the attachment proceedings commenced in the district court of Seward county, and that the value of the stock of goods at the commencement of the action was $ 1,000. The important question of fact for the trial court in this case was, whether the sale by Mills Bros. to Vaughn was a bona fide transaction, made in good faith, or made only for the fraudulent purpose of defeating creditors in the collection of their debts. Upon that question, after hearing the testimony, the court found for the defendants, and against the plaintiff. The evidence was conflicting, but the court saw...