the filing of their answer. Before the time expired for the plaintiffs to file a reply to the answer of the defendants, the plaintiffs applied to the defendants' attorney for an extension of time in which to file a reply, and a stipulation to that effect is in the record. The case of Hall v. Sanders, 25 Kan. 538, was decided at the January term, 1881, the opinion being filed at the June sitting of that year, but the mandate was not filed in the district court until the thirtieth of January, 1883.

In the mean time Francis L. Sanders had died. Mary A. Sanders had been appointed administratrix of the estate, and on the twelfth day of March, 1883, the action was revived against her as administratrix. On the sixteenth day of March, 1883, the defendants offered to pay all costs accrued in the action to date, and filed a motion to vacate and set aside said judgment of the twentysecond of January, 1880, and tendered with said motion a verified answer. Notice is also given of the use of affidavits, orders, etc., on the hearing. This motion was not heard until January, 1885, for the reason that during that time the district judge had been of counsel, and these motions had been heard by his successor in office. On the twenty-fourth day of February, 1885, the district court overruled the motion to set aside the judgment, and allow the defendants to file answer. They excepted and bring the case here. L. J. Webb and L. S. Webb, for plaintiffs in error. fendant in error.

W. P. Douthitt, for de

SIMPSON, C. This was an action in ejectment. The petition was filed on the twenty-eighth day of November, 1879, and judgment by default taken on the twenty-second day of January, 1880. Some time in the month of December, and before the answer-day named in the summons, Francis L. Sanders, one of the defendants in the court below, employed an attorney to defend the action against her and her co-defendants, stating to him all the facts, and receiving from him an assurance that the defendants had a good defense upon the merits to said action. On the sixth day of January, the attorney employed by Francis L. Sanders was suddenly called to Washington on important business, and, before leaving, requested a brother attorney to go into court, then in session, state the facts, and ask leave to file an answer for the defendants. On the seventh or eighth day of January, the attorney went into court, called the attention of the court to the case, and requested leave to file an answer, and was informed by the judge that the case would not be for trial at that term, and that the attorney employed would have time to answer after his return from Washington. On the twenty-second, judgment was taken by default against the defendants, and on the ninth day of February an execution was issued on the judgment. On that day, the attorney employed being still absent, the other attorney filed in the clerk's office a written demand for another or second trial of the action, and presented this motion to the court, and made such a showing that the court made an order reciting that, a motion having been filed to set aside the judgment in said action, it is ordered and directed that the execution issued in the action be returned, and that further proceedings be stayed thereon until the eighth day of March, 1880. On the fifth day of March, the court sustained the demand of the defendants for another or second trial, and made an order granting a new or second trial of this action in accordance with section 599, Code. To this ruling of the court exception was taken, and the plaintiff given until the twentieth day of March to present his bill of exceptions; the defendants at the same time giving notice of a motion for leave to file an answer. They filed their motion on the same day, and it was heard on the tenth day of April. The court granted them leave to file an answer instanter, for good cause shown, and required them to pay all costs to that date. The answer of the defendants was filed on the tenth day of April, and on the twenty-first of the same month they paid all the costs, as required, amounting to the sum of $13.50. In the mean

time the plaintiff had taken the case to this court, and no further proceedings were had in the district court until the thirtieth day of January, 1883, when a mandate was presented, and spread upon the journals of the district court, reversing its order granting the defendants a second or new trial. See Hall v. Sanders, 25 Kan. 538.

On the twelfth day of March, 1883, the death of Francis L. Sanders is suggested, and, by stipulation, an order is entered reviving the judgment against Mary A. Sanders, administratrix of the estate of Francis L. Sanders, deceased, in her official capacity as such administratrix. On the sixteenth day of March, 1883, the defendants filed their motion to set aside and vacate the judgment rendered against them by default on the twenty-second day of January, 1880, with leave to file an answer, and with an offer to pay all costs accrued in the action to date, and also presented a verified answer. Notice was given the attorneys of record of the plaintiff that this motion would be heard on the sixteenth day of April, and that the affidavits of certain persons would be read in support thereof. This notice was duly served on the sixteenth of March. The Honorable JOHN MARTIN, judge of the district court of Shawnee county from almost the first day of February, 1883, until the second Monday in January, 1885, refused to hear said motion, because he had been of counsel, and the hearing was postponed from time to time until the Honorable JOHN GUTHRIE became judge, in January, 1885. The motion was then heard before him, some time in January, and taken under advisement by him, and on the twenty-fourth day of February, 1885, he denied said motions, and each one of them; to which ruling the defendants excepted, and bring the case here for review.

We have very carefully considered the questions involved, and have with great care examined all the facts and circumstances, and are of the opinion that it would be an abuse of that wise discretion vested in the district court to prevent a failure of justice, to deny to the plaintiffs in error a fair opportunity to be heard upon the merits. There are no laches that can be attributed to them; and, while it is a fact that the attorney employed permitted the time for answer to expire without filing, he made an application for leave to file, within a very reasonable length of time thereafter, and was certainly misled by the statement of the judge that the case would not be for trial at that term, and that he would have time to answer after his return from Washington. This fact is not controverted, but is strengthened, by the prompt action of the judge in the order for a recall of the execution, and the stay of further proceedings, and his subsequent order allowing the defendants to file an answer upon the payment of all costs. All these things occurring so soon after he had made this statement to the attorney, who first made application for leave to file an answer out of time, seems almost absolutely conclusive that the defendants were to be protected by that promise of the judge, and were to be given an opportunity to contest the case on its merits. In giving the plaintiffs an opportunity to present their defense, we are only doing what the.court below, who was conversant with all the facts, tried to do, and only failed because its order to that effect was powerless by reason of the case at that time being beyond its control. Had the same judge remained upon the bench, it is absolutely certain that, when the case went back from this court, he would have set aside the judgment, and given the plaintiffs in error leave to plead to the petition. This is assumed because of his unauthorized action in that regard, based, we have no doubt, upon his recollection of what had transpired. We now do what he vainly tried to accomplish; we having the power, and the circumstances not only justifying, but seemingly requiring, this exercise of the authority.

It is recommended that the ruling of the court below, denying the motions, be reversed, and the causes remanded to the district court of Shawnee county, with instructions to sustain the motions, to vacate the judgment, and allow

the plaintiffs in error to file an answer to the petition, on the terms specified in the motions.

BY THE COURT. It is so ordered; all the justices concurring.

(37 Kan. 346)

DODSON v. COOPER.

(Supreme Court of Kansas. October 8, 1887.)

1. ATTACHMENT-Wrongful Seizure anD SALE-MEASURE OF DAMAGES.

Where it appears in an action brought by the plaintiff, as the owner of a stock of merchandise, to recover damages against a sheriff, who has levied upon and taken possession of the stock in good faith, as the property of a third party, that the plaintiff has purchased back the goods from a stranger, who bid then off at the sheriff's sale, the measure of his damages is the sum thus paid, (not greater than the market value;) and, in addition, such special damages as he has suffered from the unlawful taking, in the way of injury, depreciation, or otherwise, as may be proved.

2. FRAUDULENT CONVEYANCE-INNOCENT PURCHASER-RIGHTS OF CREDITORS.

Where an insolvent and failing merchant makes a sale of all his goods and merchandise for the purpose of defrauding his creditors, and the purchaser thereof has no actual or constructive notice of the fraud at the time of his purchase, and executes a bond to the failing merchant to convey certain real estate as part of the purchase price of the goods, but subsequently, and before the execution of the conveyance recited in the bond, has actual notice of the fraud, held, that such purchaser is not entitled to reimbursement, as against attaching creditors, for the real estate actually conveyed to the fraudulent insolvent after notice.

(Syllabus by the Court.)

Error from district court, Butler county; H. C. SLUSS, Judge.

On December 18, 1884, R. H. Cooper brought his action against H. T. Dodson for $10,000 damages for the wrongful conversion of a general stock of merchandise, consisting of hats, caps, boots, shoes, carpets, notions, etc., of the value of $6,000, which the plaintiff alleged he was the owner of, on November 27, 1884, at the time the same was seized and taken possession of by the defendant. The answer alleged-First, a general denial; second, that at the time of the alleged conversion Dodson was the sheriff of Butler county, and that on November 27, 1884, certain writs of attachment came into his hands in favor of the following attaching creditors of one Horace Blakely, to-wit, Bates, Reed & Cooley, Lockwood, Englehart & Co., H. T. Simons & Morse, and J. V Farwell & Co., and that the said Dodson levied the same upon the goods, wares, and merchandise described in plaintiff's petition, all of which was the property of said Horace Blakely. The answer further alleged that R. H. Cooper and Blakely entered into a conspiracy to make a sham and pretended sale of the goods to Cooper to defeat the claims of creditors and especially the claims of the attaching creditors above mentioned. To this a reply containing a general denial was filed. Subsequently an amendment to the second cause of defense was made. To this a demurrer was filed, which the court sustained. Trial had at the September term of the court for 1885, before the court with a jury. The jury returned a general verdict for the plaintiff, and assessed the amount of his recovery at $5,336.18.

The jury also made the following special findings of fact: "(1) Was the sale of the stock of goods by Blakely to Cooper made with the intent on the part of said Blakely of defrauding his creditors, or hindering or delaying them in the collection of their debts? Answer. Yes; in our judgment he did. (2) If the above question is answered Yes,' then did Cooper have actual notice of such intention on the part of Blakely? A. No. (3) What time of the day or night was the sale consummated? A. Night of November 25, 1884, between the hours of nine and twelve o'clock. (4) Were the facts and circumstances surrounding the sale such as to put a prudent man upon inquiry as to the object Blakely had in making the sale? A. No. (5) On what day was

the trade finally consummated? 4. November 25, 1884." "(9) Did Cooper before buying the goods from Blakely make inquiry of any person or persons other than Blakely to ascertain whether Blakely was making the sale to defraud, delay, or defeat his creditors? A. No. (10) Was an inventory of the stock of goods taken by Cooper before the sale was made? 4. No. (11) Was the sale made in the usual and ordinary course of business? A. Not in the majority of cases. (12) Was the sale made in an unusual manner, and at an unusual hour? A. It was made in an unusual manner, but not at an unusual hour. (13) At the time of the levy of the respective attachments of Bates, Reed & Cooley and Lockwood, Englehart & Co., by the defendant, had the bond for a deed which has been offered in evidence been delivered to Horace Blakely? A. To the best of our recollection, it had been. (14) At the time the attachments were levied on the stock on November 27, 1884, had Cooper given Blakely deeds for the land or town property which was to be part of the consideration? A. To the best of our recollection, he had not. (15) At the time of the trade, what was the amount of the mortgage on the north-east quarter (1) of section thirty-five, (35,) township twenty-five, (25,) range six, (6,) in Butler county, Kansas? A. Three hundred dollars ($300.) (16) What was the value of the interest in said land which Blakely received from said Cooper? A. Six hundred and sixty dollars, ($660.) (17) What was the amount of the mortgage on south-west quarter (4) section 10, township twenty-three, (23,) range seven, (7,) at the time of the trade between Cooper and Blakely? A. Seven hundred dollars, ($700.) (18) What was the market value of the house and lot in Eldorado, Kansas, which Blakely received from Cooper in said trade? A. Five hundred dollars, ($500.) (19) Did Cooper pay Blakely any money at the time of the trade? A. He did, in the shape of a bank check. (20) If last question is answered Yes,' state when said payment was made, and how much was received by Blakely from Cooper. A. On the night of November 25, 1884, two thousand dollars, ($2,000,) check. He also received a note of five hundred dollars ($500) said night. (21) What was the market value of the south-west quarter section No. ten, (10,) township twenty-three, (23,) range seven, (7,) east, at the time of the trade between Cooper and Blakely? A. Eight hundred dollars. ($800.)"

The defendant filed a motion for a new trial, which was overruled, and judgment was entered upon the verdict in favor of the plaintiff and against the defendant for five thousand three hundred thirty-six dollars eighteen cents, together with all the costs. The defendant excepted, and brings the case here. Smith & Solomon, A. L. Redden, E. N. Smith, and A. L. L. Hamilton, for plaintiff in error. C. A. Leland, Geo. Gardner, and W. E. Stanley, for defendant in error.

HORTON, C. J. On November 27, 1884, writs of attachment in favor of certain creditors of Horace Blakely were placed into the hands of H. T. Dodson, sheriff of Butler county, for service. Upon that day he levied the writs on a general stock of merchandise, as the property of Blakely, but claimed to have been purchased by R. H. Cooper in good faith, and for a valuable consideration, prior to the attachments. Dodson, for the attaching creditors, contended that Cooper and Blakely entered into a conspiracy to make a pretended sale of the goods from Blakely to Cooper, to defraud the creditors of Blakely. Subsequently Dodson, as sheriff, sold the stock of goods as the property of Blakely, and Cooper brought suit to recover the value thereof, alleging that they had been wrongfully seized and converted by Dodson. Judgment was rendered in favor of Cooper for $5,336.18 and costs. Upon the trial, Dodson offered to prove that Cooper bought all the goods levied upon, at the sheriff's sale, for $2,300, excepting those taken to satisfy the claim of Bates, Reed & Cooley, valued at $950.18. This evidence was rejected. The court instructed the jury that, if they found the issues for

Cooper, they would assess his damages at the amount of the value of the goods at the time they were taken by Dodson. Complaint is made of the rejection of the evidence offered, and to the giving of the instruction as to the measure of damages.

We think the complaint well made. The instruction given would not have been prejudicial if Cooper had not bought back the property in controversy. Simpson v. Alexander, 35 Kan. 225, 11 Pac. Rep. 171. But a different rule applies in such a case as this, where the owner gets back his property after the wrongful taking or conversion.

Field says: "In an action for the conversion of property, the fact that the property has been returned to plaintiff may always be shown in mitigation of damages. And, generally, where there is a wrongful taking, and the property has been redelivered to the owner or party entitled to possession of the same, the measure of damages is the expenses necessarily incurred by reason of the tort; the value of the time required to recover it; the value of the use of the property; and the amount of the injury thereto, if any." Field, Dam. § 110.

Sutherland says: "Wherever the owner gets back his property after any wrongful taking or detention, the expense of procuring its return is the measure of damages, in the absence of special damages, and where the property itself has not been injured nor diminished in value. In other words, the wrongdoer is prima facie liable for the value of property at the time he tortiously took it or converted it, with interest; but if it has been returned and accepted by the owner, its value when returned, or if the owner has incurred expense to recover it, then its value, less such expense, will be deducted by way of mitigation from the amount which would otherwise be the measure of damages. Where one recovers his property again, which had been unlawfully taken from him, he is considered as having received it in mitigation of damages, upon the principle that he has thereby received partial compensation for the injury suffered." 1 Suth. Dam. 239. See, also, McInroy v. Dyer, 47 Pa. St. 118; Ewing v. Blount, 20 Ala. 694; Hunt v. Haskell, 24 Me. 339; Sprague v. Brown, 40 Wis. 612.

In Ewing v. Blount the action was trover for the conversion of a slave. At the time of the trial the plaintiff had recovered possession of the slave. The court said: "If the owner has regained the possession of the goods, he cannot recover their value, and is only entitled to the damages he has sustained by the wrongful deprivation of his possession, and such damages should be commensurate with the injury Pierce v. Benjamin, 14 Pick. 356; Curtis v. Ward, 20 Conn. 204.

Sprague v. Brown was an action for the conversion of an iron safe of the value of $300. The safe was seized upon execution, and sold as the property of the execution debtors, who were not the owners thereof. The plaintiffs in that case obtained the return of the safe under a purchase from a party who bought it at the sheriff's sale. It was held, "plaintiffs having purchased back their goods from a stranger, who bid them off at the execution sale, the measure of their damages is the sum thus paid, (not greater than the market value;) in addition to which they might have recovered any special damages suffered from the unlawful taking, if any such had been alleged and proven.”

If we understand the evidence correctly, the testimony of Cooper shows that for the stock of merchandise levied upon he paid Blakely about $2,000 in money, and turned over to him real estate estimated at $4,800. The jury, however, found that the value of the real estate, less the incumbrances thereon, was only $1,260. On the date of Cooper's alleged purchase, he executed a bond to Blakely for certain real estate as part of the purchase price of the stock of merchandise. As there was some doubt about his ability to convey this real estate, the bond was placed in escrow until November 27, 1884, when it was taken up and destroyed, and a new bond, reciting other real estate, ex