Haxtun v. Sizer
Supreme Court of Kansas
Error from, Dickinson District Court. On September 4th, 1877, Haxtun and Ogden commenced their action in Dickinson county district court against E. W. Sizer, for $2,724.34, money had and received by the defendant .to and for the use of the plaintiffs, and caused an order of attachment to issue therein.
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Error from, Dickinson District Court. On September 4th, 1877, Haxtun and Ogden commenced their action in Dickinson county district court against E. W. Sizer, for $2,724.34, money had and received by the defendant .to and for the use of the plaintiffs, and caused an order of attachment to issue therein. The order was leviéd by the sheriff on a lot of wheat, which was appraised'at $2,675.40. An undertaking was entered into with the sheriff, signed by M. Dively & Co., T. C. Henry and J. M. Fisher, under §199 of the code; a copy of which bond is as follows: Bond fob Delivert. — Whereas, M.…
1Opinion of the Court
*312The opinion of the court was delivered by
Horton, C. J.:
The demurrer was improperly sustained. By the execution of the undertaking and receiving back the wheat, Dively & Co. admitted that the property was attached as the property of E. W. Sizer, and promised it would be forthcoming to answer the judgment of the court in the action of Haxtun and Ogden against Sizer. By such admission, promise and conduct, they are precluded from alleging property in themselves; therefore the answer of Haxtun and Ogden sets forth a valid defense to the interplea. The principle thus stated was decided in…
2Cases cited1 opinion
- Staples v. FillmoreSupreme Court of Connecticut · 1876
3Cited by8 opinions
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- Shelby v. ZieglerSupreme Court of Oklahoma · 1908
- Moffatt v. FoutsSupreme Court of Kansas · 1916
- Woods-Egan Live-Stock Commission Co. v. HicksSupreme Court of Kansas · 1914
- Wolf v. HahnSupreme Court of Kansas · 1882
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