46 Neb. 568 | Neb. | 1895
In an action of replevin commenced before a justice of the peace of Dawes county by the Commercial State Bank of Crawford against William H. Ketch am the affidavit filed to procure the issuance of the writ of replevin was as ■follows: “R, G. Smith, cashier Commercial State Bank of Crawford (a Nebraska corporation), being duly sworn, deposes and says that he has a special ownership and is entitled to the immediate possession of the following described goods and chattels, to-wit: One entire newspaper outfit and job office used formerly by publishing the Crawford Clipper, and job office and Marsland Tribune, now used in the newspaper and job office of the Crawford Tribune, comprising presses, type racks, subscription lists, fixtures, and everything used in operating the newspaper and job office of the Crawford Tribune in Crawford, Nebraska, and that the said property is wrongfully detained by one William H. Ketcham; that the said property was not taken in execution or any order or judgment against him, nor for the payment of any tax, fine, or amercement assessed against him, nor by virtue of an order of delivery issued in replevin, nor any other mesne or final process issued against this affiant.” The writ was issued, served, and returned, the appraisement of the property showing a value exceeding $200, the proceedings were certified and the case transferred to the district court as is provided by section 1039 of the Code of Civil Procedure. In the district court a motion was made by the defendant to quash the writ for the reason that there never had been any affidavit filed as a basis for
It is contended by counsel for plaintiff that an affidavit filed in an action of replevin is a pleading, within the meaning of section 144 of our Code of Civil Procedure, which provides that any pleading, process, or procedure may be amended in furtherance of justice before or after judgment, on such terms as may be just, by correcting a mistake in any respect, or by inserting other allegations material to the case, and any proceeding, may, by amendment, be made conformable to the provisions of the Code; that an affidavit in replevin may be amended, and that the affidavit presented in the case at bar asan amendment should have been allowed. Filing an affidavit in replevin has been held in this court to be a proceeding, and that the af
To support their contention that the affidavit in this case was properly amendable, and that the trial court erred in deciding that it was not, counsel for plaintiff especially direct attention to a decision of the supreme court of Kansas (Meyer v. Lane, 40 Kan., 491) and one of this court (Lewis v. Connolly, 29 Neb., 222). In the case cited decided by the Kansas court it appears that an action was “commenced by Daniel Lane against Meyer Bros., S. C. Lang & Co., et al., to obtain possession of a stock of drugs and fixtures valued at $1,000. An affidavit was filed by George S. Chase, the attorney of Lane, and an order of delivery obtained, and the property turned over to him. Meyer Bros, et al. filed a motion to set aside the order of delivery upon the ground that the affidavit did not state that the plaintiff was the owner of the property and entitled to its immediate possession. The affidavit was defective, but subsequently, George S. Chase, an attorney of Daniel Lane, filed an amended affidavit relating back to the time of the filing of the original. This affidavit cured all defects in the original affidavit, if such defects could be cured by amendment; but also stated that the plaintiff Daniel Lane was a minor, being under twenty-one years of age. Thereupon Meyer Bros, et al. filed their motion to strike out the amended affidavit on the grounds that the plaintiff had no legal capacity to sue, and that the affidavit was not amendable. The motion was overruled and defendants excepted.” The court held: “An original affidavit in replevin may be amended so as to slate sufficiently what has already been stated informally and indefinitely.” From this we conclude that there was not an entire failure to state the facts necessary to be alleged in the affidavit, but that there was an indefinite or defective statement of them.
Affirmed.