Wilhite v. Williams

• Decision Date: 05 April 1889
• Citation: 21 P. 256,41 Kan. 288
• Parties: J. H. WILHITE, as Sheriff of Lyon County, v. THOMAS H. WILLIAMS
• Court: Kansas Supreme Court

21 P. 256

41 Kan. 288

J. H. WILHITE, as Sheriff of Lyon County, v. THOMAS H. WILLIAMS

Supreme Court of Kansas

April 5, 1889

Error from Lyon District Court.

REPLEVIN for a horse, harness, and phaeton. The following is the petition that was filed:

STATE OF KANSAS, LYON COUNTY, IN THE DISTRICT COURT.-- Thomas H Williams vs. J. H. Wilhite, Sheriff of Lyon County, Kansas.-- Plaintiff for his cause of action shows to the court that he is the owner of the following-described personal property, to wit: One chestnut-colored gelding about seven years old, one low-top buggy or phaeton, one single harness. The said property is unlawfully detained from this plaintiff, who is entitled to the immediate possession thereof. That he has been damaged in the sum of fifty dollars by such unlawful detention.

"Wherefore he prays judgment for the immediate possession of said property, and for his costs, and fifty dollars his damage."

The property was taken from Wilhite, as sheriff, upon an order of delivery, but upon giving a bond the property was restored to him. The issues of the case were made up by Wilhite filing a general denial, and at the commencement of the trial, which was had without a jury, he objected to the introduction of any evidence, for the reason that the petition did not state facts sufficient to constitute a cause of action. The objection was overruled, and an exception taken. Upon the evidence introduced by the parties the court made the following findings of fact and law:

"FINDINGS OF FACT.

"1. Plaintiff, prior to the commencement of this suit, and at the time of the commencement thereof, was an insurance agent engaged in soliciting life insurance. His business as such agent covered any territory in Lyon and adjoining counties where he might desire to canvass, and was confined to the country principally. He purchased the horse and phaeton in controversy to be used in the prosecution of his said business of insurance agent, and did so use them, and was so using them at the time they were levied upon by the defendant, and said property was necessary to enable him to successfully prosecute said business. Said property is of the value of $ 250.

"2. Plaintiff is a resident of Emporia, Lyon county, state of Kansas, and the head of a family.

"3. The property in controversy is a horse, single-seated buggy usually called a phaeton, and light harness, adapted to the carrying of persons only.

"4. The property was levied upon by the defendant by virtue of an execution issued upon a valid judgment against the plaintiff who is entitled to the possession of said property if it is not exempt.

"5. The reasonable value of the use of said property from time taken to the date of trial is $ 50."

"CONCLUSION OF LAW.

"The plaintiff is entitled to the possession of the property, or the sum of $ 250 if a return cannot be had, and the further sum of $ 50 as damages for the wrongful detention thereof."

At the October term, 1886, judgment went in accordance with the findings, and the rulings of the court are assigned for error.

Judgment reversed and cause remanded.

Kellogg & Sedgwick, for plaintiff in error.

Cunningham & McCarty, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

The insufficiency of the petition is first presented, and that it is fatally defective will be readily seen. It fails to describe who is plaintiff and who is defendant, either in the title or elsewhere, except as it may appear from the order or position in which the names are placed in the heading. Then there is an omission to name the pleading by inserting the word "petition" after the title of the cause, as the code positively requires. As the case comes to us, probably neither of these objections is so serious as to be fatal; but another and more serious one is raised by the objection to the introduction of any testimony, which was made at the beginning of the trial. It is nowhere stated that Wilhite unlawfully detained the property from the plaintiff, nor is it even alleged that he had it in possession in any way or for any purpose. The gist of the action of replevin under our code is the unlawful detention of the property by the defendant as against the plaintiff; and to maintain the action the plaintiff must allege this fact in his petition. (Wilson v. Fuller, 9 Kan. 176; Hoisington v. Armstrong, 22 id. 110.)

There is a recitation in the record that the affidavit filed in the case was "in due form of law, and sufficient;" and it is suggested that, being so, it must have contained the allegation that the property was wrongfully detained by the defendant, and that this would cure the defect in the petition. In an action of replevin in justice court the affidavit may be treated as a bill of particulars because the statute does not require any additional pleading to be filed in such an action before a justice of the peace, (Starr v. Hinshaw, 23 Kan. 532,) but not so in the district court, where the petition cannot be dispensed with. There the purpose of the affidavit is to obtain an order of delivery, and its allegations cannot be used to supplement or supply the material averments required to be stated in the petition....