58 Neb. 741 | Neb. | 1899
This cause was decided at the last term, when an opinion was filed reversing the judgment below. (56 Neb. 716.) A rehearing was allowed, and a second submission taken. The facts, with sufficient clearness and fullness, are stated in the former opinion and need not be restated at this time. Certain of the legal propositions enunciated on the former hearing are assailed by counsel for plaintiffs below in language quite forcible, and not entirely courteous to this court.
It was the judgment of this court that the failure of the coroner to require the sureties on the bond given by the plaintiffs in replevin to justify as “bail on arrest,5•’ pursuant to section 189 of the Code of Civil Procedure, was not conclusive evidence of the negligence of the coroner in approving such bond, for the reason said section became inoperative by the repeal of chapter 1, title 8, of said Code, relative to arrest and bail. Upon a consideration of the subject anew the court is satisfied that the doctrine stated is unsound, and it recedes therefrom. While it is true that the legislature of 1887 (Session
We are now convinced that we fell into another grave error when we said in the fourteenth paragraph of the syllabus that “A sheriff, from whom attached property has been replevied, on the termination of the replevin suit in his favor, and the return unsatisfied of an execution issued on the judgment, cannot maintain an action against the officer, who served the replevin writ, for negligently approving an insufficient replevin bond, whereby the creditor for whom the sheriff- acted lost his debt.’-’ By virtue of the seizure, under the writ of attachment, the sheriff acquired a special interest in the property replevied,- and if he could have maintained a suit on the replevin undertaking or bond, as we said he might, it is difficult to perceive why he might not, in a proper case, recover for the approval, by the officer serving the replevin writ, of an insufficient bond. In 2 Freeman,Executions, section 268, the doctrine is aptly stated in the following language: “But the moment that a levy is made the rights and remedies of the officer are materially changed; or, more accurately speaking, he from that moment is vested with rights and entitled to remedies to which he could before urge no valid claim. He is entitled to retain such possession and control of the property as may be necessary to make it productive under the writ. The law, therefore, concedes to him, as to a bailee, a special property in the goods in his custody. It gives him all the legal remedies needed to maintain his rights and to secure him indemnity for their invasion. If the property is taken from him, or if, being left by him in the possession of another, it is taken from sucli possession by any one, or is converted by the custodian, the officer may sustain an action of replevin, trespass, or trover, just as the owner of an absolute title could do in like
That portion of the former opinion is. assailed which held that error was committed by the trial court in not permitting the coroner to introduce the executions issued on the judgments in favor of the seven creditors. There were six instead of seven executions, as erroneously stated in the former opinion, and only three of them were in favor of parties to> the record. In speaking of the exclusion of the executions the rule was stated to be that where attached chattels are replevied from the sheriff and delivered to the claimant, and the attaching
It is argued that the answer of the defendants below does not allege that any of the property retaken by the sheriff under the executions Avas finally held or sold by him. It was unnecessary to allege or prove the retention and sale of the property by the sheriff. The taking of it from the coroner constituted a defense pro tanto in an action by the former against the latter for approving an insufficient replevin bond. It is said that property, after it was taken under the executions, was subsequently turned over to the coroner under a second replevin writ. Whether this, if true, were material or not, it is unnecessary to decide, since no such issue Avas raised by the pleadings in the case. The answer set up the- seizure of the property in question by the sheriff under the executions, and this averment was controverted by a general denial. There Avas no allegation in the reply that the coroner subsequently became possessed of the same property, but the issue was whether the sheriff had levied executions upon the property after it had been taken from him under the replevin writ. We are now persuaded that the exclusion of the executions, when offered in evidence by the
The court below, at the request of plaintiffs, gave the following instruction, to which the defendants duly excepted: “Gentlemen of the jury: You are instructed that after the facts agreed upon by the parties in this case and the admissions of the pleadings, and the Anew taken by the court'as to the law controlling this case, there are not many questions left for you to pass upon. The ques-" tion will be whether or not the coroner, in the replevin action of Foster & Oo. against Barton, took an insufficient bond, and that by reason of the insufficiency of such replevin bond the plaintiffs in this cause were unable to procure the return of the property or the value thereof. Your verdict will be for the plaintiffs if you find he did, from the eAddence of the case, and you will assess the plaintiffs’ damages at $2,200, with interest at seven per cent from the 10th day of July, 1891, to the 16th day oí September, 1895, but your verdict not to exceed the amount of the coroner’s bond, $5,000.” The giving of this instruction was prejudicial error, for which the judgment must be reversed. It submitted to the jury whether the coroner took an insufficient replevin bond, and whether, by reason thereof, plaintiffs Avere unable to obtain a return of the property. It, in effect, withdrew' from their consideration every other issue, and especially the conceded fact that the sheriff did obtain possession of the identical property under the executions. The instruction ignored the defendants’ theory of the case based upon the pleadings and evidence. The judgment of the district court will stand
REVERSED.