32 Neb. 185 | Neb. | 1891
This cause is on error from the district court of York county.
The plaintiff in error, who was plaintiff below, on November 22, 1888, alleged that he had a special property in one bay horse, star in face, eleven years old, weight 950 pounds, named “Bill,” and also one gray mare, three years old, weight 800 pounds, named “ Topsey,” for the reason that the defendant on August 18, 1887, executed a chattel mortgage on said property conveying it to him, to secure two promissory notes of even date therewith for $25, due December —, 1887, and for $135, due August 18, 1888, with ten per cent interest per annum from date until paid; that the last note is still held by the plaintiff and has never been paid, and that the said chattel mortgage made and executed by defendant to plaintiff contained, among other provisions, the following, to-wit: “That in case of default made in the payment of the .above mentioned promissory notes, or in case of my attempting to dispose of or remove from said county of York the aforesaid goods and chattels or any part thereof, or if at any time the said mortgagee or his assigns shall feel unsafe or insecure, then and in that case it shall be lawful for the said mortgagee or his assigns, by himself or agent, to take immediate possession of said goods and chattels wherever found, the possession of these presents being his sufficient authority therefor; ” and that defendant did in fact, on April
To this petition the defendant filed answer admitting the making of the notes and mortgage to the plaintiff, but denying each and every other allegation in the petition contained.
At the November, 1888, term, the cause was tried in the district court upon those issues, to a jury, which found that the right of property and right of possession at the commencement of the action was in the defendant — found the value of the property to be $160 and assessed the damages for the detention by plaintiff at $115.' The defendant by order of the court remitted $50 of the verdict.
The plaintiff assigned the following errors for review:
I. The verdict is not sustained by sufficient evidence, is contrary to the evidence, and contrary to the law.
II. The court erred in rendering judgment that the defendant have return of the property replevied.
III. In rendering judgment for damages of $65.
IY. In rendering judgment for the recovery of the value of the property assigned at $160.
Y. In not requiring defendant to remit a larger sum from the amount of the verdict.
YI. The verdict was excessive and a new trial should have been granted.
The salient question presented in this case, and which controls all minor considerations affecting the trial, verdict, and judgment, in the court below, is that of the discre
Affirmed.