23 Neb. 730 | Neb. | 1888
The defendant in error brought an action against the plaintiffs to recover certain horses described in the petition. Her claim to the possession of said horses is stated in the petition as follows : “ That the interest in said property is of the following nature and kind, that is to say: That heretofore and on the 18th day of March, a.d. 1886, one Clarke S. Galbraith, then of the city of Atchison, in Atchison county, state of Kansas, being then indebted to this plaintiff in the sum of $2,000, to secure the same, did make, execute, and deliver to this plaintiff, his certain chattel mortgage, whereby he sold, assigned, transferred, and set over to this plaintiff all his right, title, and interest in certain horses and personal property, of which the following is a particular description, to-wit: Seven mare mules, of which two are bay mare mules, weighing about 1,000 pounds each, and one bay mare mule weighing about 850 p< unds, three brown mare mules, two weighing about 950 pounds each, and one weighing about 800 pounds; one black mare mule, weighing about 900 pounds. Also three horse mules of brown color, two weighing about 900 pounds each, and one weighing about 800 pounds. All of the above mules, ten in number, having just been purchased at St. Joseph, Mo., by said party of the first part. Also, one common farm wagon, and five sets of double harness ; which said chattel mortgage was duly filed for record in the office of the register of deeds for Atchison county, Kansas, on the 20th day of March, a.d. 1886. All of which was well known to the said defendant, Anton Ostertag, at the time. And also another chattel mortgage between the same parties, and including said above described personal
“2. Plaintiff further alleges that said defendants have wrongfully detained said goods and chattels from the possession of the plaintiff, and have wrongfully detained the same for four days, to plaintiff’s damage in the sum of $100.
“ Wherefore plaintiff demands judgment against the said defendants, for the return of said goods and chattels, or for the value thereof, if the same are not returned, and for her damages and costs; and that the court grant such other and further and proper relief as justice may require.”
The answer is a general denial.
On the trial the following findings were made, and judgment rendered: “ This cause coming on to be heard on the issue joined between the parties, a jury was waived in open court by the parties, and the plaintiff failing to produce any evidence to sustain the issues on her part, it is considered by the court now here, that the defendant go hence without day, and recover his costs about this suit in this behalf expended and taxed at the sum of $18.
“And, on motion of defendants for an inquiry as to the defendants’ rights of property, and their damages in the premises, and it appearing to the court that the plaintiff is in possession, thereof, the court do find that defendants are entitled to an inquiry as to their right to the
A motion for a new trial was thereupon overruled, to which exceptions were taken.
It is stated in the bill of exceptions that, “ the plaintiff did not introduce any evidence of any kind to maintain the issue on her part. The defendants, to maintain and show to the court their right of possession and amount of damages at the commencement of this action, offered in evidence, through Hon. Geó. H. Caldwell, county judge, the writ of attachment and return thereon of the case of Ostertag v. Galbraith, that was issued by the said county judge and returned into county court by the said defendant, George Loan, constable. Same writ showing that it was issued on May 22,1886, and made returnable on the 31st day of May, a.d. 1886. Also the said return of the officer showing that the property in controversy, as replevined in the suit at bar, is the same property attached by the offi- • cer, and that on the 31st day. of May, 1886, a judgment was rendered in the case for the sum of $39 debt, and $9yW costs, to which offer the said plaintiff objected, for the reason that the said evidence and points are immaterial, irrelevant, and incompetent, the said writ being returnable on a legal holiday, and is void, and the judgment purport
Copies of the papers offered in evidence are set out in the transcript.
It will be seen from the allegations of the petition, that the plaintiff below had no written lien on the property taken on the order of replevin in this case. A verbal lien is good between the parties, but void as to creditors and purchasers in good faith. Conchman v. Wright, 8 Nebraska, 1. The lien of Mrs. Galbraith, therefore, would be ■of no avail against an attaching creditor.
The principal grounds upon which the court placed its decisions were, that, as Decoration Day occurred on Sunday in that year, that therefore the following Monday was in fact Decoration Day and a legal holiday, and therefore the writs, being returnable on that day, were void; and .as the judgments had been rendered on that day they also -were void.
In State v. King, ante p. 540, it was held that where a. ■cause was continued to a day in -which the court could not transact business — as Sunday or a legal holiday — the court ■did not, therefore, lose jurisdiction of the case, but the continuance extended toa day in which the court could legally -.transact business. There is no reason why the same rule
In State v. King, above referred to, this court held that, as the statute named certain days, as the 25th day of December, 1st day of January, etc., as legal holidays, and precluded -the courts from sitting on such days, with certain exceptions, that the restriction applied only to the days named, and, therefore, if any of such days fell on Sunday, the following day was not a legal holiday except so far as it related to commercial paper. In other words, as the closing of the courts on particular week-days is in derogation of private rights, such prohibition must, if made, be by express statute and not by implication. That decision was made after a careful examination of all the authorities bearing upon the question, and in our view it is correct, and will be adhered to. The writs of attachment, therefore, and judgments, were valid, and the court erred in excluding proof of the same.
The judgment of the district court is reversed, and the cause remanded for further proceedings.
Reversed and remanded,