Hall v. Jenness , 6 Kan. 356 ( 1870 )

The opinion of the court; was delivered by

Valentine, J.:

The plaintiff'Hall replevied certain goods from the defendant Jenness. Afterward, Adolph Cohen was made a party defendant, on the ground that ho was interested in the result of the suit. The pleadings wore a petition of the plaintiff', an answer of the defendant Jenness, and a reply of the plaintiff. The plaintiff” alleged nothing in his petition against the defendant Cohen; and Cohen filed no answer to the plaintiff’s petition, nor any other pleading of any kind. Hall claimed to own, and to be entitled to the possession of the goods; his petition was an ordinary petition in replevin. The answer set up special facts in defense, among which the following were admitted by the reply, and were therefore not in issue before the jury, and were not necessary to be proved: On the 10th of November, 1868, the defendant Adolph Cohen, obtained three judgments before a justice of the peace in Leavenworth county, amounting in the aggregate to $527.55, aguinst Charles A. Bunting and Charles F. Earle. These judgments were filed in the district court of Leavenworth county, and executions thereon were issued and sent to said Jenness, sheriff of Franklin county, who levied on the said goods, which were worth $988,10, as the property of said Bunting. :

i. replevin_ owneishi!, is The answer further alleges that these goods were at the time of'said levy in fact the property of said Bunting. This the plaintiff in his reply denies; and the issue raised in the case, as we think, is, whether the said goods were, at the time of said levy, the property of said Bunting, or the property of said Hall.

2_veidirt-^ivhatisLuniThe counsel for the plaintiff suggests that this issue is an immaterial one. We regard it as being a material one; and we think that the whole answer taken together constitutes a good defense to the plaintiff’s action. If Bunting owned the goods, the defendant Jenness got the same rightfully into his possession, and did not unlawfully or wrongfully detain them from the plaintiff; but if Hall owned the goods, then Jenness wrongfully took them int0 his possession, and wrongfully held them. The issue was tried by a jui’y, who found as follows:

“We the jury find that at the commencement of this action, 'Richard E. Jenness had the right of possession of the property mentioned in the petition, and we find the value of the property to be $988.10; therefore, we the jury find for the defendants.” *

This verdict is a substantial finding that the goods were at the time they were seized in execution the property of said Bunting; and the verdict is responsive to the issue.

3. PRACTICE, IhownTit^iu sümed.Pfe' The court below, on tbe facts admitted in tbe pleadings, and tbe verdict of the jury, rendered a judgment in favor of tbe defendants jointly, and against J u ° tbe plaintiff Hall for “the sum of $578.80, “tbe debt' and interest due upon tbe executions “ mentioned in tbe defendant’s answer, and tbe further “sum of $30.85, tbe costs upon tbe same prior to tbe “commencement, and in addition thereto tbe costs of “ this suit.”

Tbe counsel for plaintiff raises two other questions in tbe court: first, that tbe court erred in its charge to tbe jury; and second, that tbe court erred in rendering tbe judgment.

_i.__andi¿must araufeiial’t0 There are two principles of law founded in soundest reason, and universally sustained by judicial decisions, that we think will settle tbe first question raised by counsel : First, A- reviewing court will never presume error, but tbe error, if any must be affirmatively shown. Second, And before a judgment will be reversed for error, it must be affirmatively shown that the error affects tbe substantial rights of tbe party camplaining; (Gen. Stat., 655, § 140.)

In this case, as appears from the record, no portion of evidence in tbe court below was preserved; no bill of exceptions was signed by the judge; no motion for a new trial was made by the plaintiff; and whether all tbe instructions given by tbe court, or asked and refused, are brought to this court, is not shown. There is no admission on tbe part of tbe defendants, or either of them, in tbe pleadings or elsewhere, and not a particle of evidence tending to show that tbe plaintiff ever had tbe least or most remote interest in tbe goods in controversy. Then. upon-what principle can tbe plaintiff complain of any errors of the court in charging the jury ? It is true that when a party has introduced evidence that tends to prove his case, he has a right to have his case submitted to the consideration of the jury under proper instructions, and where incorrect instructions upon the point in controversy are shown to have been given to the jury, over the party’s objections, a reviewing court will not undertake to say that they did not operate to the injury of the party against whom they were so given, unless such fact is made clearly to appear; (Gillett v. Corum, 5 Kas., 608;) but such is not this case. In this case, according to the record brought to this court, it would have been proper for the court below to have instructed the jury, that, “As no evidence has been introduced on the part of the plaintiff, you will find for- the defendants.” The charge of the court however was not so unfavorable to the plaintiff as this. Again: Suppose that all the instructions given by the court were abstractly erroneous, and all the instructions asked by the plaintiff and refused by the court, embodied sound principles of law; still, there is nothing in this case that tends to show that the errors of the court affected the substantial rights of the plaintiff.

I>. in replevin must be in the niter The counsel also contends that the judgment rendered by the court was erroneous. This is probably true. The court rendered a judgment for $30.85, the costs upon the executions mentioned in the answer of the defendant Jenness, although there was no allegation in the pleadings, nor finding of the jury, that any such sum was due; but still this was an immaterial error, as the judgment as rendered by the court was far short of being as much as it ought to be. But the court committed a more serious error: The judgment was rendered for money absolutely, while, it should have been rendered in the alternative for a return of the property or the value thereof, in case no return could be had. Section 185 of our code (Gen. Stat, 663,) is precisely the same as §277 of the New York code; and this construction has been repeatedly and uniformly given to said action by the New York courts: Dwight v. Enos, 9 N. Y., 470; Fitzhugh v. Wiman, 7 N. Y., 559; Wood v. Orser, 25 N. Y., 348, 355, 360; Seamen v. Luce, 23 Barb., 240, 248; Glann v. Younglove, 27 Barb., 480; Gallarati v. Orser, 4 Bosw., 94; and see also Garrett v. Wood, 3 Kas., 231, 235; and Smith v. Coolbaugh, 19 Wis., 107, 110. Under said § 185 of our code the plaintiff has a right to return the property delivered to him under an order of replevin, if the judgment be against him, and it is error for the court to deprive him of that right.

Wo also think that the court erred in rendering a judgment jointly in favor of the defendants. They had no joint interest in the property. The judgment should have been in favor of Jenness alone, as Cohen was not made a defendant in lieu of Jenness, under §§43 and 44 of the code; nor substituted for Jenness under §45 of the code; (Gen. Stat., 638.) lie was simply made a party defendant. Nothing was done to deprive Jenness, as sheriff,: of his sole and exclusive right to the goods or their value, until the executions should be satisfied. But this was' also an immaterial error, not affectiDg the substantial rights of the plaintiff as it could not be very material to him whether he paid the money to Jenness, or to Cohen, or to both jointly.

The court also erred in making the amount of the judgment too small. The judgment was for the amount of the executions, to-wit, $609.65, while it should have been for the value of the goods replevied, provided a return of the goods could not be had, to-wit, for the sum of $988.10. No portion of these goods belonged to Hall; nor had ho any interest therein, as appears from the pleadings and the verdict of the jury. They were Bunting’s goods; and the sheriff is responsible to Bunting for them, or rather for all over and above what will satisfy the executions against Bunting. A sheriff cannot levy upon more goods than will satisfy an execution in his hands, and then allow any third party to come in and take the surplus. He must save the surplus inviolate for the original owner of the goods. But this is also an error of which the plaintiff Hall cannot complain.

This case is remanded with instructions to the court below to modify said judgment in accordance with this opinion.

All the Justices concurring.