56 Neb. 247 | Neb. | 1898
As appears from a former'opinion filed in this court (Hudelson v. First Nat. Bank, 51 Neb. 557), each of the plaintiffs obtained from H. C. Larsen & Co. a chattel mortgage covering the whole of the property here in controversy. These mortgages being co-ordinate liens, -and the property being held adversely, the parties joined in an action to recover the possession thereof from the defendants. J. Y. Ainsworth, describing himself as cashier of the First National Bank of Tobias, made and filed the affidavit -on which the order of delivery was issued. In the district court, after the cause was remanded, the defendants moved to quash the writ for the reason, among others not necessary to notice, that no affidavit in replevin was ever filed by the K. .S. Newcomb Lumber Company or Stanley Larsen, or by the agent or attorney of either -of them. The motion was denied, and this ruling of the court is now assigned for error.
It is shown by the record that Ainsworth assumed to act for all the plaintiffs in procuring the order of delivery, and that they, by receiving the property from the coroner and executing the -statutory.bond, fully ratified his action in the premises; in other words, the record be-for-e us disclo'se-s the fact that the affidavit was filed by an agent of .all the plaintiffs. Such being the case, there was no error in overruling the defendants’ motion. It will be observed that an averment of -a-gency in the affidavit is not one of the conditions upon which the clerk i-s -authorized to issue the order of delivery in replevin. (Code of Civil Procedure, sec. 182.) But assuming the affidavit to be the exclusive evidence of Ainsworth’s authority to make it, the motion to quash the
Complaint is made that the case was cast on one theory in the petition and on a different and inconsistent one in the reply. A m'otion to purge the latter pleading was overruled, and this action of the court is alleged as error. The ultimate facts are stated in the petition and the evidential facts in the reply. One of the material averments of the petition is that the mortgages executed by H. 0. Larsen & Co. to the plaintiffs created a valid lien on the property in question; and the evidence pleaded in the reply, if submitted to the jury on the trial, would merely tend to establish the truth of that allegation. The record disclosing nothing to the contrary, we assume the trial proceeded in the same manner and that the order of proof was precisely the same as though the reply had been a general denial. While the motion may have been technically good, we fail to see how the defendants were prejudiced by the refusal of the court to sustain it.
Another assignment of error is that undue prominence was given by the court in its instructions to the testimony of H. C. Larsen. We have examined the instructions complained of and find that they lay down propositions of law about the correctness of which there can be no serious question. Whether the rules announced were applicable to the evidence produced we have no means of determining, as there is no bill of exceptions contained in the record. Upon this point it is sufficient to say that error does not affirmatively appear.
Affirmed,