Carr v. Huffman , 1 Kan. App. 713 ( 1895 )

The opinion of the court was delivered by

Johnson, P. J.:

The plaintiff assigns 10 separate errors for the consideration of this court. The first and second assignments have already been decided by the supreme court, in the case of Carr v. Huffman, 47 Kas. 188, and the order of the district court quashing the writ of replevin reversed. It is unnecessary for us to consider them at this time. From the view that we take of the whole case, it seems unnecessary for us to consider the several assignments of error in the order in which they are presented.

The district court found that, at the commencement of the action in replevin, the plaintiff was the owner of the piano in controversy ; that it was of the value of $375; that on the 13th day'of January, 1888, the defendant levied on the piano as the property of Samuel H. Carr; that before he made the levy he was notified that it was the property of the plaintiff, and warned not to levy on the same ; that when the piano was taken on the order of delivery in this action, the defendant put up a redelivery bond, although the court says in its finding, “but this piano was never actually delivered to the defendant.” The evidence does not show that the piano was or was not released from the levy; that demand was made-upon the defendant by plaintiff for said piano prior to bringing said action. The court then finds as finding No. 9 : “As a matter of fact, the defendant never took the piano from the possession of the plaintiff, and that at the commencement of this action the plaintiff had the actual possession thereof. ’ ’ But finding No. 9 is without evidence to support it, and is in direct opposition to the facts admitted by the defendant in his original answer filed in this action, which was verified by him as true. The plaintiff in her petition alleges the ownership of the property; that she was entitled to the immediate possession thereof ; and that the same had been wrongfully taken from her by the defendant; and that he then wrongfully detained the same from her possession. To the several allegations of plaintiff’s petition, the defendant entered a general denial of each, except those that were specifically admitted. The' defendant admitted that he levied an execution 'on said piano in an action wherein M. F. Stafford was plaintiff and Samuel H. Carr was defendant, and in this manner sought to justify Ms possession of the property, and then, when the order of delivery was served in this case and the piano taken possession of by the coroner under the order, the defendant had a redelivery bond made, which was duly approved by the coroner and returned with the order of delivery. The defendant is estopped by his answer and redelivery bond from denying his possession of the property. (Sponenbarger v. Lemert, 23 Kas. 55; Haxtun v. Sizer, 23 id. 310 ; Wolf v. Hahn, 28 id. 588.) The defendant, in his answer, says :

‘ ‘ That he is the duly-elected and qualified sheriff of Hamilton county, state of Kansas, and has been such sheriff ever since the 8th day of January, 1888 ; that on the 12th day of January, 1888, he received the writ of execution issued to him. ... in favor of M. F. Stafford v. Sam. H. Carr for the sum of $200, and $5 as cost of suit, and that by virtue of said writ of execution he levied upon the piano described in said petition as the property of Sam. H. Carr.”

" This answer was afterward withdrawn by leave of the court, but the admission made by the answer would have the same effect as though the answer was still a part of the pleadings in the case. A party having once solemnly admitted a fact and made it a part of the record by his pleadings, cannot after such admission, by merely withdrawing the paper containing the admission from the files of the court, deny such admission, but is estopped thereby. When the defendant levied on the property, he seized it and took it into custody to satisfy the writ of execution he then held against Samuel H. Carr. Section 448, chapter 80, General Statutes of 1889, provides: “The officer to whom a writ of execution is delivered shall proceed immediately to levy the same upon the goods and chattels of the debtor ; . . .” “To levy means to seize property, real or personal, or subject it to the satisfaction of an execution.” “To levy on goods and chattels, to take into custody or seize specific property in satisfaction of a writ.” — Webster. Bouvier says: “In order to make a valid levy on personal property, the sheriff must have it within his power and control.”

Under the findings of fact by the court and the admitted facts by the defendant, the court should have rendered a judgment on the motion of plaintiff against the defendant for a recovery of the possession of the property, and if a return thereof could not have been had, judgment against defendant for $300, the value of said piano as set forth in plaintiff’s petition, the court having found as a fact that the piano was of the actual value of $375, and for costs of suit. The gist of the action in replevin is the wrongful detention of personal property of another. The court having found that the plaintiff was the owner of the property at the commencement of the action, and the defendant having denied ownership and having sought to justify his seizure of the property under an execution against another party, who had no property in or right of possession in the piano, rendered the possession of the defendant wrongful.

The judgment of the district court is reversed, and the court directed to render judgment against defendant for a recovery of the possession of the piano described in plaintiff’s petition, and if a return thereof cannot be had, a judgment against the defendant for its value, to wit, the sum of $300, with 6 per cent, interest thereon from January 12, 1888, to the time of rendition of judgment, and costs of suit.

All the Judges concurring.