This is an action by William. R. Summers and Albert B. Summers, partners doing business under the firm name of Summers Bros., against Hiram Boyes, under the provisions of section 15, chapter 32, Compiled Statutes, to recover the sum of $50 for failure to discharge a chattel mortgage. From a verdict and judgment in favor of the plaintiffs for the above amount, defendant prosecutes error to this court.
At the commencement of the trial the defendant objected to the introduction of any evidence, on the ground that the petition did not state a cause of action. By the-objection it was intended to raise the constitutionality of said section 15, and, doubtless, the validity of said law might be brought to the attention of the court in that mode. The only reference made in the brief of plaintiff in error to the validity of the statute, or to the ruling upon the objection taken in the court below to the sufficiency of the petition, is the following paragraph: “This, as we understand, was intended by counsel who tried the case for defendant in the court below to raise the question of the constitutionality of the law under which plaintiff was seeking a recovery. We submit the same upon that theory.” The foregoing is insufficient to call our attention to the particular constitutional provision which it is claimed the law in question contravenes. The constitution of this state contains eighteen articles, each of which, except the second, fourth, and twelfth, is composed of several sections.
The first assignment of error is as follows: “The court erred in giving paragraphs 1, 2, '3, and 3-J of the instructions.” The only criticism made in the brief is upon the second instruction given by the court on its own motion. No exception was taken in the court below to the instruction numbered 1, nor was the giving thereof assigned as error in the motion for a new trial. Besides, it merely, and, we think very fairly, stated to the jury the issues to be tried as presented by the pleadings. There being no reversible error in the giving of one of the instructions included in the group covered by the first assignment, we very properly might, under the decisions of this court, decline to consider the second instruction. We are, however, satisfied that it is free from criticism. It is as follows: “You are instructed that the laws of this state provide that a chattel mortgage, when satisfied, shall be discharged by an entry by the mortgagee, his agent or assignee, on the margin of a book or index in which the filing of the mortgage has been entered as provided by law, such discharge to be attested by the clerk. It is also provided that the county clerk may discharge a mortgage on the presentation or receipt of an order in writing, signed by the mort
The next assignment is that the court erred in giving instruction No. 1 asked by the plaintiffs, which reads thus: “ If you find from the evidence in this case that the release claimed to have been executed by Hiram Boyes, the defendant in this case, was signed by the defendant Hiram Boyes, but was not attested by a justice of the peace or some officer with a seal, then and in that case you are in
The third assignment is predicated upon the refusal of the court to give the defendant’s first and fifth requests. The refusal of said requests is not available to the plaintiff in error, for the reason no complaint of the action of the court in that regard was made in the motion for a new trial. (Cleveland Paper Co. v. Banks, 15 Neb., 23; Hastings & G. I. R. Co. v. Ingalls, 15 Neb., 123.)
The next assignment, that the court erred in overruling the motion for a new trial, is unavailing, since it is too indefinite, the motion being based upon several grounds. (Glaze v. Parcel, 40 Neb., 732; Sigler v. McConnell, 45 Neb., 598.)
The assignments of error relating to the decisions of the court upon the admission and exclusion of testimony will not be considered, for the reason no particular ruling of the trial court is especially pointed out in the petition in error, the assignments therein being: “Errors of law occurring at
The remaining assignment to be considered presents the question of the sufficiency of the evidence to sustain the verdict of the jury. On the 22d day of May, 1888, defendants in error executed and delivered to plaintiff in error a chattel mortgage upon certain personal property, to secure the payment of $20 in thirty days. The indebtedness was fully paid to Boyes at maturity, by Albert B. Summers, one of the plaintiffs below. There is also evidence tending to show that twice during the month of July, following the payment of the mortgage indebtedness, demand was made upon the plaintiff in error that he release and discharge the mortgage of record. It is also disclosed that at the time the note was paid off Mr. Boyes executed in writing and delivered to A. B. Summers an order directed to the county clerk requesting that he surrender the mortgage to defendants in error and cancel the same of record. This order, however, was not attested by any officer; therefore, under the statute, it was of no validity whatever. This is too plain to admit of argument. It is insisted that plaintiff in error acted in good faith in the matter, and that his refusal to satisfy the mortgage of record was not wanton and oppressive, hence there can be no recovery. Admitting the premises to be true, the conclusion drawn therefrom does not necessarily follow, although there are authorities in other states which support the construction of the statute for which plaintiff in error contends. Mr. Boyes is not only presumed, but is bound, to know that the law required that the order which he gave requesting the county clerk to satisfy the mortgage must be attested by either a
Affirmed.