40 Neb. 875 | Neb. | 1894
On the 11th day of January, 1889, one Bernard Strottman was indebted to Daniel C. Kavanaugh in the sum of $300 and some interest, and to secure the payment of such indebtedness on said date he executed and delivered to Kavanaugh a chattel mortgage upon some hogs, the property in controversy in this suit. On December 7, 1889, Mr. Strottman became indebted to Ottis Brothers, as an evidence of which he executed to them his note and a chattel mortgage to secure the same upon the same property mortgaged to Kavanaugh. These notes and mortgage were assigned by Ottis Brothers to one Edward Brodball, and in August, 1890, he took possession of the mortgaged property. Prior to the bringing of this suit Kavanaugh was indebted to the First National Bank of Columbus, Nebraska, and to further secure said debt he indorsed the notes given him by Strottman and delivered them to the bank, which held them at the time this action was brought, a part of the debt owing to it by Kavanaugh, and to secure the payment of which the Strottman notes and mortgage were pledged, remaining unpaid. Kavanaugh then brought this action in replevin against Brodball for the property covered by their respective mortgages. The jury, in obedience to an instruction of the district court, returned a verdict in favor of Brodball, and Kavanaugh brings the case here for review.
The only error alleged which we. need consider is this ruling of the district court. The cardinal question in every replevin action is whether the plaintiff therein was entitled to the immediate possession of the property replevied at the commencement of the action. It appears from the evidence, beyond cavil, that prior to the bringing of this suit Kavanaugh had duly indorsed and delivered the Strottman not§s to the First National Bank of Columbus, and that at the time the suit was brought the bank still held posses
In Gamble v. Wilson, 33 Neb., 270, one Morningstar became indebted to Gamble and to secure such indebtedness gave him a chattel mortgage or bill of sale on certain personal property. Gamble sold and transferred this note to the Buffalo County National Bank. Some time after this Morningstar left the country, leaving one Taggart in possession of the property mortgaged to Gamble, which ■consisted of a frame bank building, a lumber office, a safe, counter, and some fixtures. Taggart, after the disappearance of Morningstar, delivered to Gamble the keys of the building and the combination of the safe. A creditor of Morningstar attached this property and Gamble replevied it. The judgment of the district court was that Gamble’s action of replevin should be dismissed. He brought that judgment to this court for review, one of the errors alleged being an instruction given by the trial court to the jury. Noryal, the present chief justice, writing the opinion of the court and reviewing the alleged error of the trial court in giving the instruction, said : “ Complaint is made in the brief of counsel for plaintiff in error to the giving to the jury the defendant’s request No. 3. By it the court charged the jury in effect that if they found that prior to the bringing of the suit that plaintiff had transferred all his interest in the note for which the bill of sale was given as security to the Buffalo County National Bank, and that the bank was, at the commencement of the action, the owner of the •same, then the plaintiff could not recover. The charge of the court was not only correct as an abstract proposition of Jaw, but it was applicable in the case made by the evidence.
Aefirmld.