Russell v. Smith
Supreme Court of Kansas
Et'ror from Saline District Court. Replevin, by Orson Smith and Rodney Smith for 422 head of cattle. Russell, as sheriff of Saline county, received an order of attachment issued to him in an action then pending in Leavenworth district court, wherein Chas. F. Tracy & Co. were plaintiffs and John E. Tappan was defendant, and he levied said order of attachment on the cattle in question and took them into his possession.
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Et'ror from Saline District Court. Replevin, by Orson Smith and Rodney Smith for 422 head of cattle. Russell, as sheriff of Saline county, received an order of attachment issued to him in an action then pending in Leavenworth district court, wherein Chas. F. Tracy & Co. were plaintiffs and John E. Tappan was defendant, and he levied said order of attachment on the cattle in question and took them into his possession. Smith Brothers claimed ownership and right of possession, and brought this action of replevin to recover possession. Bussell answered by general denial, and that he was sheriff…
1Opinion of the Court
The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin for 422 head of cattle. Judgment was rendered in favor of the *372plaintiffs below, (defendants in error.) The plaintiff in error claims that on the pleadings, with or without a trial, the judgment below should have been rendered in his favor; and this he does on the ground that he set up new matter in his answer constituting a complete defense to the plaintiffs’ action, to which answer the plaintiffs did not reply. No such question as this was raised in the court below, but the trial there proceeded in all…
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