Moore v. Kepner

| Neb. | Apr 15, 1878

Maxwell, J.

The plaintiff, Moore, brought an action of replevin against the defendant in the county court of York county for the recovery of a yoke of oxen. On appeal to the district court the defendant filed the following answer to the petition:

“And the said George L. Kepner, defendant, now comes and for answer to the petition of the said plaintiff says that he does not unlawfully detain the said goods and chattels of the said plaintiff, and of this he puts himself upon the country.”

The court held that the answer put in issue the palintiff’s right of property and right of possfession. This is assigned for error.

The action of replevin originally lay for the recovery of chattels taken by distress. To maintain the action there must have been an unlawful taking. 1 Dall., 157. 2 Bouvier’s L. Dict., 441. Mellor v. Leather, 18 Eng. Law and Equity, 239. Pangburn v. Patridge, 7 Johns., 140" court="N.Y. Sup. Ct." date_filed="1810-11-15" href="https://app.midpage.ai/document/pangburn-v-patridge-5472692?utm_source=webapp" opinion_id="5472692">7 Johns., 140. Thompson v. Button, 14 Johns., 87" court="N.Y. Sup. Ct." date_filed="1817-01-15" href="https://app.midpage.ai/document/overseers-of-the-poor-of-wallkill-v-overseers-of-the-poor-of-mamakating-5473808?utm_source=webapp" opinion_id="5473808">14 Johns., 87. Ilesley v. Stubbs, 5 Mass., 283. Weaver v. Lawrence, 1 Dall., 157. Stoughton v. Rappalo, 3 Sergt. and Rawle, 562. Galvin v. Bacon, 11 Maine, 28. Sayward v. Warren, 27 Id., 453. Daggett v. Robins, 2 Blackf., 415" court="Ind." date_filed="1831-11-07" href="https://app.midpage.ai/document/daggett-v-robins-7029720?utm_source=webapp" opinion_id="7029720">2 Blackf., 415.

But under the code of civil procedure, the gist of the action is the unlawful detention of the property. Haggard v. Wallen, 6 Neb., 271" court="Neb." date_filed="1877-10-15" href="https://app.midpage.ai/document/haggard-v-wallen-6642323?utm_source=webapp" opinion_id="6642323">6 Neb., 271. School District v. Shoemaker, 5 Id., 38. Ferrell v. Humphrey, 12 Ohio, 113.

An answer, therefore, which denies the unlawful detention of the property, puts in issue the plaintiff’s right to the property and right of possession of the same.

Objection is made that judgment was rendered against Eatherly as surety, without notice. As a rule, sureties upon bonds and contracts are entitled to notice of the pendency of an action upon such obligations, and they will not be concluded by the judgment unless they have had an opportunity to defend. But this rule has no application where the surety has contracted in reference to one of the parties to an action in court in the nature of the one at the bar. In such case, by becoming surety, he submits to the jurisdiction of the court, and is concluded by the judgment. The court therefore did not err in rendering judgment against the surety.

Objection is made- that the damages are assessed at $50 and a return of the property, and that the value of the property was found to be $125.

Section 191 of the code provides that: “In all cases where the property has been delivered to the plaintiff, where the jury shall find upon the issue joined for the defendant, they shall also find whether the defendant had the right of property or the right of possession only, at the commencement of the suit; and if they find either in his favor they shall assess such damages as they think right and proper for the defendant.”

Section 7 of the act approved February 26, 1873, provides that “the judgment in the cases mentioned in sections 190, 191 and 1041 of the code shall be for a return of the property or the value thereof in case a return cannot be had, or the value of the possession of the same, and for damages for withholding said property and costs of suit.” Gen. Stat., 713. Where judgment is rendered in favor of the defendant, ordinarily he is entitled to damages for the decrease in value of the property since the time of the replevin, with interest on its entire value. If the property cannot be returned, the defendant is entitled to the value of the property at the time the same was taken with interest thereon to the time of trial.

The verdict is sufficient to sustain a judgment in favor of the defendant, although somewhat informal. The judgment, however, does not conform to the verdict, and is therefore set aside. But as justice appears to have been done in the premise's, judgment will be rendered in this court in favor of the defendant for a return of the property and fifty dollars damages, or in case a return cannot be had, that the defendant recover from the plaintiff the sum of $125, together with the interest thereon; and that the defendant recover costs.

Judgment Accordingly.