Culbert v. Taylor , 7 Kan. 243 ( 1871 )

The opinion of the court was delivered by

Brewer, J.:

This was an action of replevin brought by defendant in error to recover the possession of two hogs. The petition alleges ownership and right to possession in plaintiff, and wrongful detention by defendant. The answer, containing no denial, alleges a seizure and taking-up under the stray law. A demurrer to the answer was sustained, and no amendment being asked, judgment was rendered in favor of the plaintiff for possession, and one cent damages. To reverse that judgment this proceeding in error is brought.

The answer alleges that the property was taken up by the defendant on the 8th of June, at 5 p. m., and taken from him on the 10th of June, by the writ of replevin herein. It alleges the performance by defendant of all the steps necessary to make a lawful “ taking up ” under said laws, except the giving of a bond as required by § 6, of ch. 105, (Gen. Stat., p. 1003,) and that the property was replevied without any demand. The question turns on fhe construction to be given to said § 6. Is a party taking up a stray required to give bond ? If so, when must he give it ? The statute, requires the person proposing to take up a stray to “ enter into bonds, with sufficient sureties to the State of Kansas, for the use of the owner, in double the value of the property.” The condition of the bond is not set forth. The language is plain, free from ambiguity, and requires a bond. "Whether that bond shall be an absolute obligation, or one with a condition which may be supposed to express the intention of the legislature, is a question upon which we express no opinion till the matter is fairly presented. The sufficiency of a bond is one question; tbe existence of one, another. Here no bond was given. We hold that the statute requires one. When must that bond be given? Section six reads as follows:

“Sec. 6. No person shall take up any horse, * * * swine, or other animal, under the provisions of this article, unless he be a citizen and householder, and enters into bonds, with sufficient sureties to the State of Kansas, for the use of the owner in double the value of the property proposed to be taken up, to be ascertained by the justice before whom the person wishes to post such stray, which bond shall be filed and preserved by such justice.”

A literal construction of this statute would seem to require the giving of the bond before the seizure of the stray. But such construction would practically nullify the statute. It seems to us the difficulty can be avoided by considering this section as prescribing the conditions upon which a party may avail himself of the provisions of this law, rather than as declaring the time at which those conditions must be performed. “ No person shall take up, * * * unless he be a citizen and householder.” That is, only citizens and householders can avail themselves of the provisions of this article. “ Unless he enter into bonds; ” that is, one condition is the giving of a bond. Against this view is the clause, “ in double the value of the property proposed to be taken up.” If these words, “ taken up,” refer simply to the manual seizure, as they do when used in other sections of this act, then there is great difficulty. But if they are used in a more enlarged sense, as referring to the completion of all the steps which the law imposes on the taker-up, then the difficulty ceases. In support of this last view is the fact that this section contemplates that the value of the property shall be ascertained by a justice of the peace, but fails to provide how such justice shall proceed to ascertain the value, while section nine requires the party, at the expiration of ten days, to go before á justice and institute proceedings which result in an ascertainment of the value. Is it not more reasonable to suppose that the legislature had in view this value, thus to be ascertained by prescribed proceedings before a justice, as the basis of the required bond, than that they contemplated another ascertainment of value, at a different time, perhaps by a different justice, and with no method of procedure prescribed? It seems to us this is the proper construction. It supports the statute, and renders it practical to comply with its requirements. The basis of the bond, then, being the value ascertained by the justice at the expiration of ten days from the seizure, the bond is not required until that time. The demurrer was improperly sustained, and the judgment of the court below must be reversed.

Kingman, C. J., concurring. Valentine, J., dissenting.