
    No. 26,586.
    C. W. Beeler, Appellant, v. John Lind et al., Appellees.
    
    ORDER MODIFYING MANDATE.
    Appeal from Chase district court; Isaac T. Richardson, judge.
    Order modifying mandate filed July 1, 1926.
    (For original opinion of reversal see 120 Kan. 662.)
    Criminal Law, 17 C. J. p. 375 n. 61.
    
      Bennett R. Wheeler, S. M. Brewster, John L. Hunt, all of Topeka, and A. L. Moffat, of Kinsley, for the appellant.
    
      Gilbert H. Frith, Louis E. Clevenger, both of Emporia, and Charles E. Davis, of Cottonwood Falls, for the appellees.
   The opinion of the court was delivered by

Mason, J.:

This action was replevin for cattle under a chattel mortgage. The plaintiff obtained possession and no redelivery bond was given. It has been finally decided by this court that the plaintiff was entitled to the cattle, and that issue is settled. It is represented, however, in a motion of the defendant to modify the judgment that from the proceeds of the cattle here involved' and other cattle covered by the mortgage the plaintiff has obtained money in excess of his claim. The defendant asks that the amount and ownership of such excess be decided by this court in order that the controversy may be ended, or if that request be denied then that the case be remanded to the district court in such a way that these matters be there determined.

A complete adjustment in the present action of the entire controversy is desirable. Obviously, however, new questions of law and fact may be and probably will be involved in such settlement. This court is so doubtful of its jurisdiction in such a proceeding that it is unwilling to assume it even with the consent of the parties. An order will be made, however, to give opportunity for the hearing and determination of such matters by the district court in this action. Jurisdiction to that extent was expressly retained in response to a suggestion of counsel at the time the opinion wás filed. The direction for a mandate is modified so that, while requiring final judgment to be rendered that the defendant shall not recover any part of the cattle involved, the district court may permit supplemental pleadings to be filed relating to claims to any surplus of the proceeds, such claims to be litigated in this action, provided all persons interested be made parties and due service be made upon them or appearance be entered in their behalf, or suitable provision be made to indemnify the plaintiff against claimants not so served or appearing.

Harvey, J., not sitting.  