56 Neb. 158 | Neb. | 1898
In .an action of replevin, commenced in the county court of Gage county, the property was taken under the writ and delivered to the plaintiff. Issues were joined, a trial had, and judgment rendered, from which an appeal was perfected to the .district court; and during the course of the proceedings in the appellate court a motion was presented for defendants that the writ be quashed, the action dismissed, and a jury impaneled to inquire of defendants’ right of property, possession, and damages, on the ground that the petition and affidavit filed in the court where the suit was instituted were insufficient and fatally defective in' statements. The- motion was sustained, the judgment of dismissal rendered, and the requested order made. The plaintiff prosecuted error proceedings to this court and filed a supersedeas bond. The district court refused the defendants further proceedings in that tribunal during the pendency of the error proceedings in the cause in this court. The defendants instituted this action in this court to obtain the issuance of a writ of mandamus to the judge of the district court by which he should be ordered to further hear the defendants in the rejdevin suit. To the petition in the case at bar the respondent filed a general demurrer and the issue thus made has been argued and submitted.
The point to which we deem it best to direct attention, and on which to base the decision herein, is in relation to the right of defendants to further proceed in the action of replevin after they had succeeded on their motion
“Where, on motion of the defendant in replevin, the writ has been quashed as void for not describing the property seized, the defendant cannot have an assessment of damages, which is confined by Comp. L., secs. 6758-9, to cases where The property specified in the writ’ has been delivered to the plaintiff, and can cover no other property.
“Mandamus. Motion submitted October 22. Denied October 31. Goods were taken from Parsell under a writ of replevin that did not describe them, the only deserip*162 tion being in the .affidavit annexed. The writ was accordingly quashed as void, and Parsell waived return and asked an assessment of damages, which was refused for want of jurisdiction, the writ being void. He applied for mandamus to compel an assessment. The writ was denied.” (See, also, Jordan v. Dennis, 7 Met. [Mass.] 590; Gray v. Dean, 136 Mass. 128; Burdett v. Doty, 38 Fed. Rep. 491; Smith v. Fisher, 13 R. I. 624.)
Viewed in the light of the foregoing conclusion it appeared on the face of the petition in this cas'e that the order of the court which the relators seek to enforce was non-effective and made without jurisdiction, and the pleading was open to attack by demurrer; the latter must be sustained, the writ denied, and the action dismissed.
Writ denied.