Furrow v. Chapin

The opinion of the court was delivered by Valentine, J.: This was an action of replevin. Full pleadings were filed in the court below, to-wit, a petition, an [111] answer, and a reply. A trial was had before a jury upon the merits of the action. A verdict was rendered for the plaintiff below, defendant in error, and judgment was rendered accordingly. The defendants below now bring the case to this court and ask a reversal of said judgment. No affidavit for the order of replevin is copied into the record brought to this court. And the question is now raised for the first time, that no such affidavit was ever made. The plaintiffs in error are too late in raising the question. If no such affidavit was in fact made, they should have raised the question in the court below, and before they went to trial on the merits of the action. The court below never heard nor decided the question, and of course could not have erred in any ruling thereon. II. The property replevied was taken from the plaintiff by the defendant below, Furrow, as deputy sheriff, on an execution issued against the property of D. M. Chapin, the husband of the plaintiff below. The defendant McCubbin, who was plaintiff in the execution, afterward came in and was made a party defendant. The petition however was not amended; and it at no time stated any cause of action against McCubbin. Indeed, it did not even mention his name. McCubbin answered, but he did not state in his answer any ground for affirmative relief, asked for none. He simply denied “each and every allegation in said petition alleged against him,” which really amounted to nothing, as nothing was alleged against him. His answer also alleged “that the property in the goods and chattels was not in the said plaintiff, but was in one I). M. Chapin, and taken in execution of his property by the said defendant, R. P. Furrow, deputy-sheriff of said Nemaha county, before the commencement of this suit, and was sold by the said deputy-sheriff at sheriff sale to the highest bidder long before the commencement of this suit.” This was the whole of MeCubbin’s answer. The judgment was rendered jointly against Furrow and McCubbin for $225 and costs. This we think was erroneous. Such a judgment should not have been rendered [112] against McCubbin. No issue was made up between the plaintiff and McCubbin, as might have been done under §42 of the code; McCubbin was not made a defendant in lieu of Furrow, as he might have been under §§ 43 and 44 of the code; nor was McCubbin substituted for Furrow, as he might have been under §45 of the code. (Gen. Stat., 637, 638.) McCubbin was simply a supernumerary defendant, as the pleadings were made up, and there was nothing to try as between him and the plaintiff. The judgment should also have been rendered in the alternative. (Jenness v. Cohen, 6 Kas., 357, 365; Copeland v. Majors, 9 Kas., 104, 106; Wilson v. Fuller, 9 Kas., 177, 193.) But as no question has been raised in this court with reference thereto we shall say nothing more concerning it. III. The defendant Furrow is unquestionably liable in this action. The execution against the property of D. M. Chapin did not authorize him to seize the property of Sally M. Chapin. IV. A married woman may maintain an action in this state in her own name. “A woman may, while married, sue and be sued, in the same manner as if she were unmarried.” (Gen. Stat. 563, §3; id., 636, §29.) It seems strange that counsel should raise such questions as the last two. (We are now following the brief of counsel for plaintiffs in error.) Some of the questions which we shall hereafter notice have but little better foundation than the two last mentioned. V. Where a married woman replevies property she may testify in the case, although the defendant may claim that he as an officer seized and now holds the property as the property of her husband, and that he seized the same by virtue of an execution issued against the property of her husband. In the present case the defendant did not testify orally. But a deposition of hers was read on the trial. When the deposition was offered to be read on the trial the defendants objected. But they gave no reason why they objected. (Simpson v. Kimberlin, 12 Kas., 579; Luke v. Johnnycake, 9 Kas. 511, 518.) And when the objection was overruled, as it [113] was, by the court, the defendants did not except to the ruling of the court. (Small v. Douthitt, 2 Kas., 335, 338.) YI. The plaintiff purchased said property with her own money. This is shown beyond all controversy. But she purchased it after she was married, and it is claimed by the plaintiffs in error that she purchased it outside of Kansas, and that we must presume that the common law prevailed where she purchased it, and that the property became at once the property of her husband. Now in the first place the evidence does not show where she purchased the property ; secondly, we are not bound to presume that the common law prevails everywhere or anywhere outside of Kansas; but in the absence of proof we should presume that laws similar to our own exist everywhere throughout the civilized world; and thirdly, even if we should presume that the common law was in force where the plaintiff purchased said property, still we should also presume that the rules of equity were also in force, and when the property was brought to this state the courts under their equitable jurisdiction would protect the wife’s equitable rights. (See Going v. Orns, 8 Kas., 85, 88, 89.) This property was probably purchased by the plaintiff in Illinois where their statutes are similar to our own. (See Gross’ Illinois Statutes, 439; Emerson v. Clayton, 32 Ill., 493.) In the present case we shall presume that the purchase was made under laws similar to our own. YII. A married woman may purchase horses with her own money if she chooses to do so. (Gen. Stat., 563, §§ 2, 4.) This cause will be remanded, with the order that the judgment of the court below be modified in accordance with the views expressed in this opinion. All the Justices concurring.