96 Neb. 365 | Neb. | 1914
Appeal from a judgment of the district court for York county in an action of replevin. It appears that on the 4th. day of November, 1911, plaintiff filed his petition, in substance, as follows: That he has a special interest in a. certain black mare, about seven years old, called Bessie;that the plaintiff recovered a judgment in the county court of York county, Nebraska, against the defendant on the-1st day of July, 1911, for the sum of $183.85, and costs of' suit taxed at $-; that on the 12th day of July, 1911,. he caused the judgment to be transcripted to the district, court for York county, and on the 25th day of July, 1911,. an execution was issued thereon and placed in the hands: of the sheriff of said county; that the sheriff duly levied
To this petition the defendant demurred, for the reason that it did not state facts sufficient to constitute a cause of action. The defendant’s demurrer was sustained, and thereafter the parties stipulated as follows: “Comes now the parties by their attorneys of record, and hereby stipulate and agree, for the purposes of this suit, that the value of the property taken under the writ of replevin herein was $130 at the time it was taken under said writ, and that the damages to the defendant for the detention of said property is one cent.” Thereupon the court rendered a judgment in favor of the defendant for the return of said property, and in case a return could not be had that defendant recover of the plaintiff the value thereof, with interest at the rate of 7 per cent, from the 26th day of July, 1911, amounting to the total sum of $134.95, and
The first question presented for our determination-is: Can an execution creditor maintain replevin for property which has been released from the levy by the. sheriff as property exempt to the execution debtor, where the creditor’s only property in and right to the possession of the property replevied was acquired solely by virtue of the levy of the execution? The interest of an execution creditor in property levied on by the sheriff is not a legal one; but, if he has an interest at all, it is merely an equitable one. Hicklin v. Nebraska City Nat. Bank, 8 Neb. 463; Cobbey, Replevin (2d ed.) secs. 172-184. Where property seized under execution is claimed by the execution debtor as exempt, and the same is set off to him by the officer, it is relieved from the lien of the execution. 17 Cyc. 1120; Hall v. Hough, 24 Ind. 273.
It is contended, however, by the appellant, that “the law of replevin applicable to rights of mortgagees applies in this case; that, after the mortgagee has become entitled to the possession of the mortgaged property he may enforce such right and recover possession of the property in an action of replevin as against the mortgagor.” That a mortgagee may maintain replevin for mortgaged properly after condition broken is too well settled in this state to need any citation. But this rule is hardly applicable in the case at bar. A mortgage conveys an interest in the property to the mortgagee, while the mortgagor retains possession of it, and is entitled to such possession until the conditions of the mortgage are broken, and upon the happening of that event the mortgagee is entitled to main-' tain replevin to obtain possession of the mortgaged property. The levy of an execution, however, gives the officer who makes the levy a special interest in the property and the right to the possession of it, and he may maintain replevin as against third persons who have interfered with its possession; but the execution creditor has never been
It is contended, however, that unless the plaintiff can maintain the action he is without a remedy. We think that this is not the case. If the execution debtor has made a false affidavit it would seem that plaintiff has an effective and summary remedy under the provisions of the statutes providing for proceedings in aid of execution. Rev. St. 1913, secs. 8111-8128. Those sections provide for summoning the debtor to make disclosure as to his property, and provisions are made therein which it would seem are amply sufficient to enable the execution creditor to reach the property of the debtor, which as a matter of fact is not exempt by law, to be applied in satisfaction of the execution.
Finally, it is contended that the judgment of the district court is not sustained by sufficient evidence, for the reason that it is provided by section 7831, Rev. St. 1913, that “if the property has been delivered to the plaintiff, and judgment be rendered against him on demurrer, * * " the court shall * * * impanel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury shall be satisfied that said property was the property of the defendant at the commencement of the action, or if they shall find that the defendant was entitled to the possession only of the same at such time, then, and in either case, they shall assess such damages for the defendant as are right and proper, for which, with costs of suit, the court shall render judgment for the defendant.” It is argued that because no application was made on the part of the defendant for a jury, and none was impaneled, the judgment of the district court was void; that, in order to have a valid judgment in a replevin suit, the provisions and requirements of our statutes must be strictly followed. We think this contention is beside the mark. It appears that, when the defendant’s demurrer to the plaintiff’s petition was sustained, the parties, as it was their right to do, entered into the stipulation set forth at the outset of this opinion.
Affirmed.