Ely v. Holloway

Citations

• 95 Kan. 8
• 147 P. 1128
• 1915 Kan. LEXIS 163

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Third Party Claiming Property Involved — Properly Made Party to Action. One having an interest in property the possession of which is the subject of an action in replevin between other persons may be made a party to the action and take appropriate steps for the protection of his 'interest in the subject matter of the litigation.</p> <p>2. Replevin — Defenses under General Denial. One who claims a lien on a vehicle because of repairs made and care bestowed upon it may under his general denial show that the plaintiff had parted with the ownership and right of possession of the vehicle before the action was begun.</p> <p>3. Same — Error in Instructions — Not Determined in Absence of Evidence. In the absence of the evidence or of its purport it can not be' determined upon appeal that instructions given by the trial court were inapplicable to the issues actually tried, and even if they were not abstractly correct under the pleadings it can not be said that the error was so material as to require a reversal.</p> <p>4. Judgment — Trial Court May Correct Entry as to Costs. The judgment was rendered in favor of the defendant and an intervenor for costs, whereas the verdict of the jury found in favor of the defendant alone. It appears that the form of the judgment, which was prepared by counsel and entered by the clerk, was not brought to the attention of the trial court. Held, that this irregularity could have been corrected without an appeal, and that upon a remand the trial court may correct the entry and make a proper apportionment of the costs.</p>