Hall v. Hurd

*375 Opinion by ClogstON, C.:

The first question presented is, is a demand necessary to entitle a party to an action for a penalty for failing to release a chattel mortgage? Section 16 of chapter 68, under which this action was brought, does not in terms provide for a demand, but with its reference to § 8 of chapter 68, we think that it implies that a demand is necessary. The action having been brought in justice’s court without a demand having been made, it was prematurely brought, and for that reason, doubtless, the action was afterward dismissed. This action in justice’s court was brought within a year after the mortgage debt had been paid, and the present action was brought within a year after the dismissal of the action begun in justice’s court. The question presented then is, did the bringing of the action in justice’s court before demand was made prevent the statute from running ? It is contended by the defendant in error that it did not prevent the statute from running, for the reason that there was no cause of action until a demand had been made; and if no cause of action existed, then the bringing of the action ought not to protect a party from the statute. In this view we do not concur. This court held, in Seaton v. Hixon, 35 Kas. 663 , that an action to foreclose a mechanics’ lien, prematurely brought, prevented the statute from running. It was also held in McWhirt v. McKee, 6 Kas. 412 , that it was immaterial to inquire for what reason the action was dismissed; it was enough if the action was dismissed without a hearing upon its merits. Under the rule established by these authorities it seems to us that it would make no difference whether this action injustice’s court was brought prematurely or not; a cause of action existed. The law made it the duty of the mortgagee to release the mortgage after payment. It was as much his duty to do so before demand as afterward. True, no penalty attached until after demand. There was a wrong on the part of the defendant, and the plaintiff had a right of action independent of the notice to compel such cancellation. The action was commenced and dismissed without a trial on *376 the merits. We think that was sufficient. (Koons v. C. & N. W. Rly. Co., 23 Iowa, 493 ; Coffin v. Cottle, 16 Pick. 383 ; Walker v. Peay, 22 Ark. 103 .)

We therefore recommend that the judgment of the court below be reversed, and the cause remanded for a new trial.

By the Court: It is so ordered.

All the Justices concurring.