Storms v. Eaton, 5 Neb. 453

Storms v. Eaton

5 Neb. 453 | Neb. | 1877

Maxwell, J.

I. In this action the answer alleges that after the issuance and levy of certain executions on the goods in controversy, defendant in the court below “received a notice from the plaintiff that he was the owner of said goods and chattels, and I then forthwith gave notice to said plaintiff that the trial of the right of property in said goods and chattels would be bad,' as is provided by law, before E. L. Cornwell, one of the justices of the peace in and for said county of Saline, and state of *457Nebraska, and a jury; and afterwards, to-wit, on the eleventh day of March, 1874, a trial of the right of property was had before the said R. L. Oomwell and a jury, and upon said trial the right of property was found to be in the said W. T. Eaton and not in said plaintiff.”

The plaintiff in error was sheriff of Saline county and as such levied on the goods in question. But two questions are presented by the bill of exceptions:

First. Did a trial of the right of property before a justice of the peace preclude the defendant in error from bringing an action of replevin?

Second. Is the verdict sustained by the evidence?

It is claimed that a trial of the right of property was had under the provisions of sections 4'86, 487, and 488, of the code of civil procedure, and that in consequence thereof an action of replevin will not lie against the sheriff. These sections of our code were copied from the code of civil procedure of Ohio. This question has frequently been before the supreme court of that state.

In Ralston v. Oursler, 12 Ohio State, 111, the court say: “The claimant having in this instance voluntarily availed himself of the statutory remedy instead of resorting, as he might have done, to the remedies left open to. him by the common law, must be regarded as having elected to take this peculiar remedy, with all its statutory incidents, and cannot now, so far at least as the sheriff is concerned, complain of its infringement of his constitutional rights.”

In Abbey v. Searls and Rider, 4 Ohio State, 598, the eourt say: “The claimant is not bound to have a trial of the right of property, and if he nevertheless see fit to have it, and fail to establish his right, thereby adding apparent strength to the claim of the creditor, that the property be held by the process, he ought not to be allowed, in a subsequent proceeding against the officer, to show his right to it.”

*458• In Patty v. Mansfield, 8 Ohio, 369, the court say: “No person is bound to claim his property under this statute. He may at once commence his action at common law against the sheriff or other officer. And if he prefer the statutory remedy he ought to be concluded by it, so far at least as the officer is concerned.”

In Jones v. Wilson, Carr & Co., 16 Ohio State, 420. it was held that where goods were levied upon by a sheriff under color of process in attachment or execution issued from a court of record, and the same are claimed by a person other than the defendant named in the process, a trial of such claimant’s right to such property under the statute can be instituted only at the instance of the claimant, and cannot be instituted at the instance of the sheriff or other officer making the levy against the will of the claimant.

In a proceeding of this kind the claimant becomes the actor. It is his duty to give notice in writing to the plaintiff in execution of the time and place of trial; and no trial of his right to the property can be had until it is made to appear that such notice has been given. The result of the trial is or may be to prevent the claimant from bringing an action against the officer making the levy. If the jury find against the claimant he cannot after-wards maintain an action against the officer; while if the jury find in favor of the claimant, the plaintiff in execution may tender the undertaking provided for by section 488, and require the sale to proceed, and the officer in such case will not be liable to the claimant, his remedy being upon the undertaking. But the officer has no authority whatever to institute proceedings of this kind without the consent of the claimant, as he cannot be deprived without his consent of his right to a trial by jury, nor (under our present constitution) his right to have the case reviewed in the court of last resort.

But there is no allegation in the answer, nor proof to *459show at whose instance the proceedings before the justice were instituted. It is said that E. H. Eaton claimed the goods, but that of itself is not sufficient to authorize the commencement of summary proceedings under the statute. Nor is there anything in the answer or bill of exceptions to show that the justice rendered judgment on the finding of the jury in favor of the plaintiffs in execution, as required by section 487 of the code. The case, as made by the record, falls far short of being a judgment in bar, which would prevent the defendant in error from maintaining an action against the officer for the recovery of the goods.

II. Where a verdict is clearly wrong it should be set ‘ aside, but a mere difference of opinion between the court and jury will not warrant the former in setting aside the verdict of the latter. It is the province of the jury to pass upon questions of fact; but if a mere difference of opinion between the court and jury would be sufficient to authorize the court in setting aside a verdict, it would in effect substitute the court for the jury in the determination of questions of fact. Seymour v. Street, ante, page 85. McGatrick v. Wasson, 4 Ohio State, 566.

After a careful examination of the evidence in this case, we are of the opinion that the verdict is fully sustained. The judgment of the district court is therefore affirmed.

Judgment affirmed.