45 Neb. 771 | Neb. | 1895
This was an action in replevin for certain live stock, the plaintiff claiming under two chattel mortgages, and the de
The assignments of error chiefly argued relate to the action of the court in excluding from evidence one of the mortgages under which plaintiff claims. Many objections were urged to the mortgage, among them being that the petition stated no cause of action. The court seems to-have based its ruling on other grounds, but if the objection were well taken on this ground, a consideration thereof practically disposes of the case. The petition alleged that the plaintiff “has a special ownership and property in, and is now, and was at the commencement of this suit, entitled to immediate possession of the following goods and chattels, to-wit.” Then, after describing the property, the petition proceeds: “The special ownership and property of plaintiff in said property consists in, and arises by virtue of, two certain chattel mortgages thereon, as follows: One executed and delivered by one A. Burrall to plaintiff on or about April 24, 1888, covering the four bulls above described with other property; and one executed and delivered by the said A. Burrall and one R. E. Burrall to the-plaintiff on or about October 15, 1889, covering all the property above described except the four bulls, both of which said mortgages are still in full force and unsatisfied, and of the existence of said mortgages and plaintiff’s lien and rights thereunder the said defendant had both actual and constructive notice prior to the issuance and levy of his execution on said property.” The remaining allegations are not- material to the question presented. It is claimed that this petition is defective, in that it avers no facts entitling the plaintiff to the possession of the property. It will be observed that it nowhere appears in the
The plaintiff in this ease did plead specially his mortgages, but he has not pleaded sufficient to establish his right of possession, unless either the general allegation that he is entitled to the immediate possession is sufficient for that purpose, or unless a right to possession is implied in the mortgagee as against third persons, although the mortgage confers merely a lien and does not pass title. Section 182 of the Code of Civil Procedure requires the affidavit in replevin to aver “that the plaintiff is the owner of the property, or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the same.” It is possible that if the facts in relation to the plaintiff’s special ownership or interest be sufficiently stated, the general averment ns to the right of possession would under this statute be sufficient in the affidavit. This, however, is a question not here presented or decided. We are here dealing with
During the trial, and immediately before resting his case, a request was made as follows: “The plaintiff asks leave to amend his petition herein generally, subject to any penalty of costs or otherwise that may be imposed by the court.” This request was refused. The court did not err in this ruling, for the reason that the request did not disclose the nature of the amendment which was desired.
It is contended that the court erred in directing the amount of the verdict, and that the amount should have been left for the jury to assess. The plaintiff sought to-show a partial payment by the mortgagor of the judgment on which the execution was issued. The mortgagor testified that he had delivered certain grain to the defendant, amounting in value to about $200. He testified, however, that there was no agreement or understanding that this was; to be applied on the judgment, but that he understood that the judgment was rendered for rent of a farm for a certain period, and that he delivered the grain in payment of rent, for a portion of that period. The transcript of the judgment in evidence shows that it was based on a certain contract, and on a promissory note, and this evidence from the record was not impeachable. There was, therefore, no sufficient evidence to go to the jury to prove a part payment. The evidence as to the measure of damages was in other respects uncontradicted, and the instruction and verdict conformed thereto. The court properly directed a verdict for the amount proved.
Judgment affirmed.