162 Iowa 593 | Iowa | 1913
Some time prior to October 28, 1911, plaintiff was the owner of a Ford automobile, upon which he had executed a mortgage to the defendant Sawyer. Both parties were residents of Omaha, Neb., and the mortgage was duly acknowledged and filed for record according to the laws of that state. Before the commencement of this action, plaintiff had left the machine with a repair company in the city of Omaha to have it repaired. While in the possession of the repair company, Sawyer, the mortgagee, on the afternoon of the day before this action was commenced, brought an action of replevin in the county court of Douglass county, Neb., against the repair company, to recover the possession of the machine. The machine was taken under a writ issued in that action by a constable, and by him turned over to one of the defendants, Benjamin, who was an attorney for Sawyer, with instructions to take it to a certain garage in Omaha for storage. Instead of following these directions, Benjamin brought it to Council Bluffs, and left it temporarily with the Marsh Auto Company in that city. On the morning of the 28th of October, plaintiff commenced this action of replevin against Sawyer, Benjamin, and the Marsh Auto Company, to recover the possession of the machine, and pursuant to a writ issued in the case, the property was taken, by the sheriff
One section of the Nebraska statute (Cobbey’s Ann. St. 1911, section 1157) provides that in replevin proceedings':
The sheriff, or other officer, shall not deliver to the plaintiff, his attorney or agent the property so taken, until there has been executed by one or more sufficient sureties of the plaintiff a written undertaking to the defendant, in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him, and return the property to the defendant, in case judgment for a return of such property is rendered against him. The undertaking shall be returned with the order.
And another (section 1159) says:
If the undertaking, required by section one hundred eighty-six (1157), be not given within twenty-four hours from the taking of the property under said order, the sheriff or other officer shall return the property to the defendant. And if the sheriff or other officer deliver any property so taken to the plaintiff, his agent or attorney, or keep the same from the defendant, without taking such security within the time aforesaid, or if he take insufficient security, he shall be liable to the defendant in damages.
The judgment has support in the record, and it is Affirmed.