Worden v. Jones
| Decision Date | 01 May 1895 |
| Parties | JAMES WORDEN v. J. W. JONES, as Sheriff of Reno County, et al |
| Court | Kansas Court of Appeals |
Opinion Filed July 16, 1895.
MEMORANDUM.--Error from Reno district court; L. HOUK, judge. Action by James Worden against J. W. Jones, as sheriff of Reno county, J. C. Holloway, and Davidson & Williams, to enjoin the collection of a certain judgment. Judgment for defendants, and plaintiff brings the case here. Reversed. The material facts are stated in the opinion herein, filed July 16, 1895.
Judgment reversed and case remanded.
John W Jones, for plaintiff in error.
Whiteside & Gleason, for defendants in error.
On January 13, 1891, James Worden filed his petition with the clerk of the district court of Reno county, Kansas, alleging that on the 18th day of March, 1890, J. C. Holloway obtained a judgment in said court against James Worden, Sidney E. Peck, and Swift & Co., a corporation, for the sum of $ 840.62 with interest at 6 per cent. from the date of judgment, and costs taxed at $ 88.40, and that thereafter the said Holloway assigned said judgment to his co-defendants, Davidson & Williams, and in April, 1890, said judgment was fully paid and satisfied, the said assignees receiving the full amount thereof, except the amount of costs. Afterward, on the 1st day of December, 1890, an execution was issued from the district court of said county, and he attaches a copy of said execution to his petition. He further avers that he tendered to the sheriff the full amount of costs and accruing costs in said cause, but the sheriff refused to accept and receive the costs and make return of the execution, but levied the 'same upon Worden's real estate situated in Reno county, Kansas, for the purpose of collecting the full amount of judgment, interest and costs as not satisfied under the execution. Worden also offers to pay all costs which he has not heretofore paid in said cause, and asks that the sheriff be required to accept the same and return the execution; that he be enjoined from proceeding under said execution to sell the property of this plaintiff. The petition contains three several causes of action, setting up substantially the same state of facts in each cause for an injunction. To the petition of plaintiff the defendants, on the 22d day of January, 1891, filed their answer, containing three several defenses, in which they admit that the judgment was taken as set forth in plaintiff's petition, and that Holloway transferred the same to Davidson & Williams, but they deny that the judgment was ever paid or satisfied, but aver that said Davidson & Williams, for good and valuable consideration, assigned the judgment to some other party than Swift & Co., to wit, one Edward F. Swift, and that the assignee holds said judgment, and that it is in full force and unsatisfied. The second count in the answer alleges substantially the same facts as the first, and avers the issuing of execution and that the same is levied upon real estate of the plaintiff, which they are seeking to have sold in satisfaction of the judgment. The third count contains substantially the same allegation, but denies specifically that Davidson & Williams ever received the principal and interest of said judgment from Swift & Co., but avers that the same was assigned to Edward F. Swift, who still owns and controls the same, but whose assignment has not yet been placed on record. The answer is verified by Gleason, attorney for defendants. Defendants also on the same day filed a motion to strike out all that part of the third count of plaintiff's petition commencing with the words "thereafter on March 18, 1890," of the third page of said count, because the matters set up in said count are immaterial to the issues in said cause, and for the second reason that it was redundant and incompetent. This motion has never been passed upon by the court. On the 30th day of January, 1891, plaintiff replied to the answer of the defendants, in which he says that if it be true, as alleged in the answer of the defendants, that Davidson & Williams, assignees of said judgment, assigned the judgment to one Edward F. Swift, that said Swift took the assignment of the judgment to himself for the sole use of defendants Swift & Co.; that Swift is the manager and controlling official in the management of Swift & Co., whose office is in Kansas City, Kas., and that said Swift & Co. is a corporation; that if said corporation did not furnish the money to the said Edward F. Swift, which was turned over to Davidson & Williams for said judgment, it was understood and agreed between said corporation and Edward F. Swift that it would reimburse him and save him harmless by reason of his acts in relation to said judgment, and avers that said acts were done at the instance and request of Swift & Co. by Edward F. Swift, as agent for defendant corporation, and were in payment of said judgment, but it was assigned to Edward F. Swift for the fraudulent purpose of controlling an execution on said judgment against this plaintiff. On the 23d of February, 1891, the defendants filed a demurrer to the reply of the plaintiff, setting forth four different causes of demurrer thereto, each of which alleges substantially that the facts stated in the reply are not sufficient to overcome the allegation in defendant's answer. At the March term of the court, 1891, the demurrer to the reply was sustained, and Worden electing to stand on his petition and reply, judgment was rendered refusing an injunction and also for costs of suit, and the plaintiff excepted and brings the case to this court for review.
The principal contention in this case is as to whether the judgment of J. C. Holloway against James Worden, Sidney E Peck, and Swift & Co., a corporation, which was afterward assigned to Davidson & Williams, was actually paid by Edward F. Swift for and on behalf of Swift & Co., a corporation, of which it is alleged that Edward F. Swift is the principal officer...
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...Estate of Baby, 87 Cal. 200; Adams v. Bus Line, 184 Cal. 710; Trust Co. v. McGregor, 6 Ida. 134; Russell v. Hugunin, 2 Ill. 562; Worden v. Jones, 1 Kan.App. 501; v. Stringer, 73 Neb. 247; Edjerly v. Emmerson, 23 N.H. 555; Sager v. Moy, 15 R. I. 528; Fowler v. Wood, 31 S.C. 398; Faires v. Co......
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