52 Neb. 164 | Neb. | 1897
This action of replevin originated before a justice of the peace for Hamilton county, where the defendant in error as plaintiff alleged as his cause of action the levy by him, as sheriff for said county, upon the property in controversy, to-wit, a team of horses, to satisfy an execution against Joseph Gion, and the subsequent wrongful and unlawful seizure of said property by the plaintiff in error, as constable, under and by virtue of an execution against said Gion. There was, on appeal to the district court, a judgment for the plaintiff, from which the defendant prosecutes error.
Both writs were regular in form, although that held by the plaintiff in error was issued without authority of law, there being no judgment against Gion in favor of the plaintiff named therein, the Kalamazoo Wagon Company. Such a writ, being fair upon its face, may, it is conceded, be sufficient to protect an officer against personal liability for acts done in the execution thereof, although it cannot be made the foundation of any right in the property taken thereunder. (Freeman, Executions, sec. 20,. and cases cited.) It follows that plaintiff in error’s levy was void and invested him with no right of possession as against the defendant in error, and that the latter should recover, provided his levy was regular and sufficient in form, a question to which attention will now be directed. The return of the last named officer shows a levy in due form at the hour of 4- o’clock P. M. of June 20, 1889, and is presumptively correct. (Freeman, Executions, sec. 366.) In addition thereto be testified that he found the team in controversy on the day named at Engel’s livery stable, in the village of Hampton; that said property was pointed out to him by Mr. Thayer, then in charge of the stable; that he immediately notified him, Thayer, that .he had levied upon said team as the property of Gion, and thereupon
Plaintiff in error, on the trial, relied also upon a subsequent levy by virtue of an order of attachment against Grion. It follows, however, from the conclusion reached' respecting the sufficiency of defendant in error’s levy, that there exists no foundation for that contention and it may accordingly be dismissed without further comment.
It is alleged that the district court erred in denying plaintiff in error a trial by jury upon demand by him. We observe from the transcript that the cause came on for trial on the 29th day of March, 1894, that being one of the days of the regular March term, whereupon the defendant demanded a jury, but that a jury having been
Affirmed.