63 Neb. 324 | Neb. | 1901
Lead Opinion
This is a replevin action, brought in justice court of Gage county, which resulted in a judgment from which an appeal was taken to the district court, where the following proceedings were had: On May 19, 1897, plaintiff in error, plaintiff below, hereinafter styled “plaintiff,” by leave of court filed its petition in the district court, to which defendant in error, defendant below, hereinafter styled “defendant,” filed for answer a general denial. On December 2, 1897, plaintiff was given leave to file an affidavit in replevin, which was done. On the same day defendant filed a motion to strike the affidavit in replevin from the files for the following reasons: “First, because said affidavit is superfluous, there being already an affidavit filed before this one in this court; second, because
Several errors are assigned and argued by plaintiff, only one of which will be considered. The affidavit of replevin filed in justice court set out that the plaintiff had a special interest and right of possession in the property involved in suit by virtue of a chattel mortgage executed by Henry Ottoe to plaintiff thereon, which was duly filed, and that ■ the plaintiff was entitled to the immediate possession thereof; but failed to allege that the mortgage was due by its terms, or that there had been any default authorizing plaintiff to take possession of the property. The affidavit in replevin filed in the district court pleaded the same matters contained in the affidavit in justice court, and in addition stated that the mortgage contained a provision that, when the mortgagee felt unsafe or insecure, or in case of an attempt to remove or dispose of the property, the mortgagee might take possession, and that the defendant had taken possession and was removing said property and converting it to its own use, and that the mortgagee felt unsafe and insecure. It seems clear that the trial court regarded the affidavit filed in the district court as such an amendment as changed the cause of action, and that, under the rule that a cause must be tried in the appellate court upon the same issues upon which it was tried in the lower court, the amendment was not permissible. This view was erroneous. An affidavit having been filed in justice court, there was no necessity for filing another in the district court, unless i
It follows from what has been said that the action of the trial court was erroneous, and it is therefore recommended that the judgment be reversed, and the cause remanded for further proceedings in accordance with law.
By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is reversed, and the cause remanded for further proceedings.
Reversed and remanded.
Dissenting Opinion
dissenting.
It seems to me perfectly plain that the judgment should be affirmed. The plaintiff voluntarily abandoned his case. He was not forced out of it by an erroneous decision. The commissioner’s opinion proceeds on the assumption that the original affidavit was capable of being amended, and that the court erred in refusing to permit an amendment to be made. If the affidavit was void, the ruling complained of was right. Commercial State Bank v. Ketcham, 46 Nebr., 568; Bolin v. Fines, 51 Nebr., 650. If it was not void the ruling was, at most, harmless error. If the proceeding by