70 Neb. 701 | Neb. | 1904
The plaintiff in error was, by the district court for Jefferson county, allowed to intervene as defendant in a replevin action for the purpose of protecting his so-called attorney’s
In Locke, Hulcatt & Co. v. Shreck, 54 Neb. 472, it is ex-, pressly held that, to maintain an action for conversion of chattels, a party must have actual possession of the property, or the right of immediate possession. In Depriest v. McKinstry, 38 Neb. 194, this court expressly held that an action of replevin will not lie against one who, at the time-the action was instituted, was neither in the actual nor constructive possession or control of the property, unless he has concealed, removed, or disposed of the same for the purpose of avoiding the writ, and in Peterson v. Lodwick, 44 Neb. 771, it is said:
"The facts necessary to be established to entitle a plaintiff in replevin to recover must be shown to have existed at the time the action was commenced.”
In the case before us the defendant in error, at the time the action was commenced to recover for the conversion of the buggy, did not know that the one fact necessary to a right of action in replevin, that Avas not necessary to sustain his action of conversion, that is, possession of the buggy by the defendant, then existed. As we have seen, •his right to immediate possession of the property must exist to support his action of conversion as fully as is required to support replevin. There Avas then no election to pursue the action in conversion Avith knowledge of his right t-o the action of replevin, and, even if the remedies were inconsistent, he was not estopped to bring replevin, because he. dismissed the other action as soon as he discovered he had the right of replevin.
“As the theory of it is a transfer of title to the converted property from the owner to the wrongdoer or his vendee, it is the opposite of the theory upon which are predicated the remedies of trespass, trover and replevin, which is that of continued title in the injured party.”
The alternative remedies are assumpsit on the one side, and trespass, trover, and replevin on the other, and these latter are concurrent, provided the wrongdoer still has the property so as to allow replevin. The only theory upon which plaintiff in error bases his claim of right to a reversal is wrong, and it appears that the judgment of the district court is the only one justified by the record.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.