47 Neb. 256 | Neb. | 1896
This was an action by tbe defendant in error, plaintiff below, wbo sued to recover for tbe use of a span of mules for tbe period of seven months. Tbe answer admits tbe allegations of tbe petition, except as to tbe value of tbe use of tbe mules de
The first assignment of error relates to the ruling of the district court during the trial in denying the defendant’s request for leave to so amend his answer as to set off against the plaintiff’s cause of action the balance secured by the mortgage mentioned. The proposed amendment was not to conform the pleadings tolhe facts proved, but for ■the purpose of inserting a new and distinct cause of action in favor of the defendant. Although liberal provision is made for the amendment of pleadings (Civil Code, sec. 144), the subject is one resting largely in the discretion of the trial court, and its rulings in that regard are not, in the absence of an abuse of discretion, the subject of review by this court. (Mills v. Miller, 3 Neb., 87; Hedges v. Roach, 16 Neb., 673; Johnson v. Swayze,
It is argued that the plaintiff had no right to-the use of the mortgaged property after condition, broken, his remedy being by an action for redemption or to recover the surplus, if any, remaining after the satisfaction of the defendant’s mortgage. That argument is based upon the proposition, once recognized a-s the law of this state, that the-effect of a chattel mortgage is to transfer to the mortgagee the legal title of the property conveyed, subject to be defeated only by performance of the stipulated conditions. But in Musser v. King, 40 Neb., 892, it was held, overruling Adams v. Nebraska City Nat. Bank, 4 Neb., 370, that the mortgagee has a lien only upon property pledged by chattel mortgage, and that the title thereto remains in the mortgagor until divested by means of foreclosure proceedings. (See, also, Bedford v. Van Colt, 42 Neb., 229.) The right of the mortgagee under a chattel mortgage to possession of the-property conveyed pending foreclosure proceedings will not be controverted; but when he takes possession of property in order to satisfy his lien thereon by means of notice and sale in the manner prescribed by law, he does so with the implied
The judgment in this case is vigorously assailed on the ground that it is clearly unsupported by the evidence. We shall not, howmver, attempt a synopsis of the testimony. It is conceded that, so-far as the number of witnesses is concerned, the advantage is decidedly in favor of the defendant; but, as has been repeatedly held, the credibility of the witnesses is a question for the jury, and a verdict based upon conflicting evidence wall not be set aside on account of any mere difference of opinion between this court and the trial judge or jury. The evidence introduced by the plaintiff below tended to prove that the mules in question were used by the defendant without the consent of the former, from the time they were taken under the mortgage in September, 1889, until the date of their sale in May, 1890, and which was worth from 75 cents to $1 per day. Assuming the defendant’s claim for rent to have been established to the satisfaction of the jury, the amount of the recovery allowed on the plaintiff’s cause of action, |102.25, is certainly not so unreasonable as to call for interference by this court.
Exception was also taken to the refusal of the following instruction: “You are instructed that the defendant, under the testimony, has a just and valid claim against the plaintiff for the amount due on the two notes set out in the answer, together with interest thereon.” The in
There is no error in the record; and the judgment is
Affirmed.