Ward v. Ryba

• Decision Date: 11 December 1897
• Docket Number: 10296
• Parties: R. B. WARD v. EDWARD RYBA
• Court: Kansas Supreme Court

51 P. 223

58 Kan. 741

R. B. WARD v. EDWARD RYBA

No. 10296

Supreme Court of Kansas

December 11, 1897

Decided January, 1897.

Error from Republic District Court. Hon. F. W. Sturges, Judge.

Judgment reversed.

Ellis Reed, Cook & Ellis, T. M. Noble, B. T. Bullen and E. B Towle, for plaintiff in error.

J. F Close and N. T. Van Natta, for defendant in error.

OPINION

DOSTER, C. J.

This was an action of replevin for a stock of goods. Frank Barnett was at one time the owner of the stock. He was indebted to Rosa Ryba in the sum of five thousand dollars, evidenced by promissory notes which, by her direction, he had executed to the defendant in error, her son. Barnett became financially embarrassed, and by agreement with the defendant in error gave to him and in his name a bill of sale of the goods, in payment of the notes. The defendant in error was at the time in charge of the stock as Barnett's employee, and upon receiving the bill of sale of it, assumed possession thereunder. This was done without the knowledge, at the time, of Mrs. Ryba, the real owner of the notes, but was ratified by her when she was informed of it. Soon thereafter, certain creditors of Barnett attached the goods. The defendant in error brought replevin for their possession, alleging generally that he was the owner. The question for determination is whether, under an allegation of ownership of property, recovery can be had under proof of owership in another and right to possession merely as his agent or trustee. The District Court decided that it could be done, and gave judgment accordingly; from which the defendant in that court prosecutes error to this.

The claim of error is well taken. There are three provisions of the Code which bear upon the question. Section 177 provides that an order for the delivery of personal property shall be made when the plaintiff files an affidavit that he is the owner of such property, "or has a special ownership or interest therein, stating the facts in relation thereto." In this case the statutory affidavit was not filed. This, however, merely dispensed with the issuance of an order of delivery before judgment. Batchelor v. Walburn, 23 Kan. 733. It did not dispense with the necessity of a petition containing the averments of ownership and right of possession which are required in the affidavit. If it be that a person entitled to the possession of goods belonging to another can maintain replevin for their delivery to him by virtue of his agency or trusteeship for the owner, he must, under this provision of the Code, state the facts in relation thereto; because his ownership or interest therein is a special one. In the case of Kennett v. Peters (54 Kan. 119, 37 P. 999), it was decided that one who in a replevin action alleges general ownership of the property cannot recover upon proof of special ownership of it as mortgagee. The terms of the Code apply as much to a special ownership or interest as trustee or bailee as to a special ownership or interest as mortgagee. The object in both cases is to compel a disclosure of the claims constituting the plaintiff's cause of action, so as to enable the defendant to meet them with counter-evidence if he can, and to enable the parties to examine the jury on their voir dire as to their prejudice against or sympathy for them.

Section 26 of the Code requires that "every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 28."

Section 28 declares: "An executor, administrator, guardian, trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted." The defendant in error claims that his case falls within the exception of either a "trustee of an express trust," or, "a person with whom or in whose name a contract is made for the benefit of another."

It does not fall within the first of these...