63 Neb. 10 | Neb. | 1901
This proceeding is brought to review a judgment for the defendant in an action of replevin. The facts, so far as material to the questions of law involved, may be stated best in connection with the several assignments of error to which they relate.
The first point urged is that since the answer is a general denial and the usual prayer for the alternative judgment for return of the property or for its value is omitted, no judgment could be rendered in favor of the defendant further than one for his costs. At first sight this position seems warranted by the authorities. Thus, a recent work says, in accordance with the text-books generally: “The
Exception is taken to the judgment because it is not in the alternative form prescribed by section 191», Code of Civil Procedure, but is a money judgment for the value of the property only. It appears by the bill of exceptions that during the trial the parties stipulated in open court that “the property since being replevied in this case has been disposed of by the plaintiff and can not be returned.” In Lee v. Hastings, 13 Nebr., 508, it seems to have been * held that an alternative judgment must be rendered as directed by the statute, notwithstanding a stipulation that a return can not be had. But this whole subject, which had been far from clear under the previous decisions of this court, was gone over exhaustively in Selby v. McQuillan, 59 Nebr., 158, and we think, in the light of the opinion in that case, Lee v. Hastings should not be followed. It is true, in Selby v. Mc-Quillan the judgment itself showed that the property could not be returned, while in this case, as in Lee v. Hastings, such fact appears only from the stipulation of the parties. Nevertheless the reason and principle of Selby v. McQuillan clearly apply. As Sullivan, J., aptly says in that case: “The section in question does, of course, contemplate that an alternative judgment shall be rendered, if, under the conditions existing at the time of the trial,
Error is also assigned with respect to the form of the verdict and the instruction of the court by which it was prescribed. The instruction was as follows: “If you find from the evidence for the defendant, it is admitted that the value of the corn in controversy is $591.36, interest $254.58, total, $845.94, and you should return a verdict for the defendant for said sum of $845.94.” The verdict, following the instruction, was in this form: “We, the jury in the above entitled cause, do find for the defendant and assess the amount of his recovery at the sum of $845.94.” Both the instruction and the verdict were excepted to, and they are manifestly contrary to section 191, Code of Civil Procedure, which requires that in all cases where the property has been delivered to the plaintiff and the jury find for the defendant, the jury also find whether at the commencement of the action the defendant had the right of property or the right of possession only and assess his damages. The stipulation of the parties, referred to in the instruction quoted, fixes the value of the property at $591.36, and the interest thereon, computed by the court and directed to be found as a part of the value, would, in strictness, be the damages for withholding the property. The attention of the trial court was called to these errors in the form of verdict it was prescribing at the time. But the view seems to have been taken that, by reason of the stipulation that the property could not be returned, the action had become, in effect, an action of trover and that
The instruction quoted and the verdict pursuant thereto were clearly erroneous. But the question still remains whether such errors require a reversal of the judgment. It is fundamental that errors, as such, are. not, of necessity, ground for reversal unless prejudicial to the party complaining. In the analogous case of the alternative judgment required by section 191a of the Code, after first holding that such requirement must be complied with absolutely in all cases, this court has come to the view that a party who is in no way prejudiced by failure to enter the prescribed form of judgment can not complain thereof. Selby v. McQuillan, 59 Nebr., 158. We see no difference either in the requirements themselves or in the language of the Code with respect to them which constrains us to hold that the one may be departed from with impunity, if no prejudice results, while the other must be adhered to absolutely in every case under pain of reversal of the judgment. Although the case most in point is to the contrary, the course of decision in this court, when considered in connection with the rulings as to the form of-judgment in such cases, supports this conclusion. Search v. Miller, 9 Nebr., 26, was in many respects like the case at bar. There the defendant was agent of the owner, and plaintiff claimed as mortgagee, while here the defendant
To obtain a proper understanding of the errors assigned upon the instructions of the court, a brief review of the evidence will be necessary. S. S. Brown and H. S. Brown were partners engaged in various lines of business, among others the purchase and sale of land. They held a bond for a deed to certain lands, the legal title to which was in the plaintiff, and were in possession of them. Although it seems to have been partnership property, the bond ran to H. S. Brown. The latter had rented the lands prior to 1891, but, as he had gone out of the state, S. S. Brown rented them for that year and took leases running to himself. He claims to have assigned these to his wife, Elizabeth H. Brown, on May 16, 1891. During the spring of the same year negotiations began between the two Browns and the plaintiff looking to the surrender of the bond and of possession of the lands and the adjustment of a considerable indebtedness which they owed him. The plaintiff claims that the bond was surrendered May 20. However this may be, a written agreement, whereby the bond was canceled, the debts adjusted, and the rents turned over to the plaintiff, was duly executed by the latter and H. S.
We are not entirely satisfied with the manner in which the issues and the law applicable to them were presented in the charge. As,we view the case, the questions to be decided were these: (1) Were the respective assignments relied upon valid and complete? (2) if so, when did they become complete respectively, and what were their respective priorities? and (3) was the assignment to Elizabeth H. Brown a genuine transaction or was it colorable merely and intended to defeat the rights of the plaintiff? But Nwe need not discuss the charge as a whole, because we think at least one of the specific instructions complained of is prejudicially erroneous/ In this instruction the jury were told that if S. S. Brown and H. S. Brown were partners, any contract made by either in the line of the partnership business would bind the partnership, and hence that the first assignment of the rent share made by either would hold. We need not consider this as an abstract proposition, because the testimony does not show that S. S. Brown made the assignment to his wife -in the course of the partnership business. He claims to have made it in payment of moneys he had borrowed of her years lief ore,
With one exception, the other errors assigned do not present questions likely to arise upon-a new trial, and need not be taken up. ^ The one question which may come before the district court again relates to a ruling permitting the defendant to use a deposition taken by the plaintiff, but not offered by him.'''’ It seems that the deposition of this witness had been taken three times, twice by the plaintiff and once by defendant. Plaintiff introduced a part of one of those taken by him, whereupon defendant, besides reading the one he had taken, read also, over objection, the other deposition taken by plaintiff. It would seem that a considerable part of these several depositions went over the same ground and objection might possibly have been made for that reason. But the objections made at the trial went solely to the right of one party to use depositions of his adversary, in the taking of which he did
It is recommended that the judgment be reversed and the cause remanded for a new trial.
Reversed and remanded.