Wilson v. Me-Ne-Chas

• Decision Date: 09 February 1889
• Parties: CHARLES L. WILSON v. ME-NE-CHAS, as next friend of Shu-ka-see
• Court: Kansas Supreme Court

20 P. 468

40 Kan. 648

CHARLES L. WILSON v. ME-NE-CHAS, as next friend of Shu-ka-see

Supreme Court of Kansas

February 9, 1889

Error from Jackson District Court.

CHARLES L. WILSON, plaintiff in error, was a constable of Holton township, Jackson county, and as such, on an execution issued upon a valid judgment against Charles Sheppard, levied upon one gray horse as his property. Shu-ka-see, an Indian boy at that time about fifteen years of age, claimed to own the horse, and an action was brought in a justice's court for its recovery, entitled "Me-ne-chas as next friend of Shu-ka-see, plaintiff, against Charles L. Wilson defendant." Me-ne-chas made an affidavit in replevin, in which he says he is the father of the plaintiff in the above-entitled action, and that said plaintiff is the owner of the horse, describing him. Summons was issued, and the property was taken upon an order of replevin and turned over to the plaintiff. Upon the return-day defendant appeared specially before the justice and moved to dismiss the action which was done by the justice; and at the request of defendant a jury of six men was impaneled, who inquired into the right of possession of the defendant to the property. After hearing the evidence and being instructed by the court they returned a verdict for defendant and found the value of the horse to be $ 40, and that he had sustained $ 25 damages for its wrongful detention. The justice rendered judgment accordingly. From this judgment the plaintiff appealed to the district court. At the trial in the district court the defendant, by motion, suggested that the transcript of the justice was defective, and asked that the justice be ordered to certify to the district court the correct proceedings in his court, which the defendant says were as follows: When the defendant appeared specially to dismiss the case, the plaintiff suggested that it be dismissed without prejudice to a future action, and after the dismissal the plaintiff brought another action in replevin for the same horse in the same court against defendant, which was dismissed and an appeal taken from the first order of dismissal. The court overruled that motion, whereupon defendant filed a motion to dismiss for the following reasons:

"1. The action was begun without the filing of a written consent of guardian as required by statute.

"2. The affidavit required by statute has not been made by the party required by statute to make the same.

"3. The action was brought in the name of Me-ne-chas as next friend of Shu-ka-see, minor, whereas a minor should be real party to the action."

This motion was also overruled, and the parties proceeded to the trial of the cause upon its merits.

The defendant claims there was error in the introduction of evidence. The testimony is not all preserved in the case-made, but from that portion brought here we learn that Charles Sheppard, from whom the horse was taken, upon examination in chief states he was not its owner, but had taken it in the spring of 1885 to break and drive. The plaintiff offered in proof the record of the filing of a chattel mortgage in the office of the register of deeds of Jackson county, in which it appeared that Charles Sheppard gave a chattel mortgage on one gray horse eight years old. There is nothing in the record to show the identity of the horse mortgaged with the horse in controversy. The jury rendered a verdict for the plaintiff. Judgment...