Wilcox v. Johnson

• Decision Date: 04 February 1886
• Parties: HORACE H. WILCOX v. JABIN JOHNSON, et al
• Court: Kansas Supreme Court

9 P. 610

34 Kan. 655

HORACE H. WILCOX v. JABIN JOHNSON, et al

Supreme Court of Kansas

February 4, 1886

Error from Chase District Court.

ACTION brought by Wilcox against Johnson and others, to recover $ 1,500, the alleged value of fifty-nine head of cattle belonging to the plaintiff, and alleged to have been by the defendants converted to their own use. Trial at the April Term, 1884, and judgment for defendants. The plaintiff brings the case here. The material facts are stated in the opinion.

Judgment reversed and cause remanded.

Bowman & Bucher, and Waters & Ensminger, for plaintiff in error.

F. P Cochran, C. N. Sterry, and Scott & Lynn, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action in the nature of trover, brought in the district court of Chase county, by Horace H. Wilcox against Jabin Johnson and others, to recover $ 1,500, the alleged value of fifty-nine head of cattle belonging to the plaintiff, and alleged to have been converted by the defendants to their own use. The case was tried before the court and a jury, and the court excluded some of the evidence of the plaintiff and sustained a demurrer to the remainder and rendered judgment in favor of the defendants and against the plaintiff for costs; and the plaintiff, as plaintiff in error, now brings the case to this court.

The facts of the case, as shown by the pleadings and evidence, are substantially as follows: On July 23, 1881, Wilcox owned the cattle aforesaid, and was then keeping them on his own farm in Cottonwood township, Chase county. On that day a complaint was made under § 3, chapter 161, Laws of 1881, to Johnson, who was then sheriff of the county, that the said cattle were wild and undomesticated, and were infected or diseased with what is commonly known as Texas, splenic or Spanish fever. On the same day the sheriff gave a verbal notice of such complaint to A. B. Wagoner, a justice of the peace of Falls township, in said county. On the next day, which was Sunday, July 24, 1881, Johnson and the justice went to the place where the plaintiff was keeping his cattle, which was about twenty miles from where the justice held his office, and outside of the justice's own township, and there the justice summoned three resident citizens of Chase county before him as inspectors, and administered to them the oath required by statute, and the inspectors then inspected the cattle and reported that they found the condition of the cattle to be such as to endanger the health of the other cattle in that vicinity from the contagion of Texas, splenic or Spanish fever; and thereupon the justice issued his order to Johnson, commanding him as sheriff to take charge of such cattle and to keep them under his control and in his custody until the first day of November, 1881, and to do and perform such other acts with regard to the cattle as should be required by law; and the sheriff then took charge of the cattle, and from that time on retained them in his possession, though he kept them on the plaintiff's own farm. The plaintiff demanded the possession of the cattle from the sheriff, but he refused to surrender them to the plaintiff, and on October 11, 1881, the plaintiff commenced this action for their value. After the commencement of this action the sheriff sold the cattle, and after paying the expenses incident to their seizure, inspection and retention, paid the remainder of the proceeds of the sale into the county treasury. The cattle were worth about $ 1,300. The plaintiff also introduced evidence tending to show that the cattle were not wild or undomesticated, and were not infected or diseased with what is commonly known as Texas, splenic or Spanish fever, and were not liable to communicate any disease to other cattle. As before stated, the court excluded some of the plaintiff's evidence and sustained a demurrer to the remainder, and then rendered judgment in favor of the defendants and against the plaintiff for costs. The trial was had and judgment rendered on April 7, 1884. A motion for a new trial was made, and overruled on the same day.

The plaintiff claims that the judgment of the district court is erroneous and should be reversed, for the following reasons First, the justice could not legally act outside of his own township; second, the justice could not legally act on Sunday; third, the order of the justice was not conclusive that the cattle were wild, undomesticated, or affected with any...