Campbell v. Crone

| Neb. | Jul 15, 1880

Kike, J.

As this case now stands, several of the matters discussed by counsel are not involved in the real questions raised by the petition in error, wherein the only complaint is, although expressed in three different forms, that the finding and judgment of the district court are against the weight of'evidence and the law of the case. For instance, the dismissal of the action by the county court for want of jurisdiction, although doubtless erronoous, was not objected to by Crone, who alone had the right to complain of it. Campbell certainly had no right to complain of an order which he had moved, nor of the consequences naturally and necessarily re-suiting therefrom, one of which was, as correctly held by the county judge, that if the court was without jurisdiction as claimed by the motion to dismiss, and as the court had held by granting the motion, it was without authority to entertain the question of the right of property or of damages. This left the parties precisely as if the action of replevin had not been commenced, and Campbell had voluntarily returned the property to Crone.

.But the district court, on petition in error by Campbell, reversed the judgment of dismissal and retained the case for trial. Although clearly erroneous, this ruling was submitted to by Crone, who, on the trial in that court, was found to be entitled to hold the property, and Campbell was defeated. Thus we see that the several principal rulings of both tribunals preceding the final judgment in the district court were favorable to the plaintiff in error, or at least conformable to his requests, and that although errors were committed, the only party that could rightfully have complained has not done so.

On final trial in the district court, Crone offered no testimony, but submitted the case to the decision of the judge without a jury on that produced by Campbell. The finding and j udgment, however, were clearly right, it being conclusively shown that the property in question was wholly exempt from seizure on attachment, and wrongfully held by Campbell when taken from him by the order of replevin. This showing was made, it is true, somewhat irregularly and against the protest of Crone, it being by a transcript of certain affidavits filed in the attachment case to obtain a release of the property on the ground of its being exempt from forced sale. But Campbell, at least, is bound by his own proofs. These affidavits seem, very strangely, to have been entirely ignored by the justice, although tliOy1' establish beyond the shadow of a doubt that Crone was entitled to hold the property under our exemption laws, and even a great deal more had he been so fortunate as to Lave possessed it.

There is no error in the record of which the plaintiffin error can rightfully complain, and the judgment of the district court is affirmed.

Aekirmed.