Citation Numbers: 41 Kan. 54
Judges: Johnston
Filed Date: 1/15/1889
Status: Precedential
Modified Date: 9/8/2022
The opinion of the court was delivered by
On the rehearing a modification of the judgment rendered by this courtis asked by the defendant in error. The judgment given by the district court against Heithecker which was ordered to be reversed, was for $432.40. This judgment was based upon two claims, one for $292.40 on notes alleged to have been left with Heithecker for collection by E. C. Thornton & Co., and which he had collected for them, and also a claim of $140 for cigars sold to him by E. C. Thornton & Co., both of which claims it was alleged had been assigned by E. C. Thornton & Co. to Fitzhugh, the defendant in error. Prior to the beginning of these proceedings, a notice of garnishment had been served upon Heithecker by a creditor of Thornton & Co., and an attempt made to subject what was due from Heithecker to the payment of Thornton & Co.’s debt. In this action Pleitheoker denied that the notes were left with him for collection, and claimed that he had purchased and paid for the same. He admitted that he was indebted on the claim of $140 for the cigars purchased from Thornton & Co., and he brought and paid into court the sum of $140.35, together with the accrued cost of $2.90, and asked
By agreement of the parties the only question submitted to the jury was whether Heithecker owed Pitzhugh the sum of $292.40, and as to the $140 claim it was agreed that the court should determine from the evidence to whom that amount was due; and the court, after hearing the evidence, determined that it was justly due to the defendant in error.
When judgment was rendered in favor of Pitzhugh, an application was made in behalf of the creditors of Thornton & Co. to file an interplea, claiming a lien upon the sum of $140, by virtue of garnishment proceedings; but the court determined that the application came too late, and properly denied it. Although an exception was taken to this ruling by counsel for the creditors of Thornton & Co., they are not now complaining.
The jury found upon the issues submitted to it that Heithecker was owing upon the notes left for collection the sum of $292.40, and to this amount the court added the further sum of $140, about which there was no controversy between the parties to this action, and entered judgment for bot'h as an entirety. The fact that a portion of the judgment was conceded to be correct was not brought to the attention of this court at the first hearing, aud hence an unqualified reversal was ordered. That part of the judgment admitted by Heithecker to be due, which the court found rightfully belonged to Pitzhugh, and of which finding no complaint is made, should stand as it was rendered; and to that extent the judgment hereto fore given will be modified.
The defendant in error further claims that the costs in this court should be divided. Ordinarily, where a judgment is