The Blue Valley Bank v. Clement Bane & Co.

• Decision Date: 04 November 1886
• Citation: 30 N.W. 64,20 Neb. 294
• Parties: THE BLUE VALLEY BANK, PLAINTIFF IN ERROR, v. CLEMENT BANE & CO. ET AL., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

30 N.W. 64

20 Neb. 294

THE BLUE VALLEY BANK, PLAINTIFF IN ERROR, v. CLEMENT BANE & CO. ET AL., DEFENDANTS IN ERROR

Supreme Court of Nebraska

November 4, 1886

ERROR to the district court for Gage county. Tried below before BROADY, J.

Judgment affirmed in part, and reversed in part.

Hardy & McCandless and Griggs & Rinaker, for plaintiff in error.

T. D. & J. E. Cobbey, Hazlett & Bates, and Burke & Prout, for defendants in error.

OPINION

COBB, J.

This cause was heard at a former term of this court and an opinion filed and published in the N. W. R., vol. 26, p. 583. ^[*] A motion for a re-argument was made and allowed, and the cause re-argued and again submitted at the present term.

A brief re-statement of the facts of the case may not be out of place.

Tessier was the general owner of a stock of goods and was in debt. The bank was the owner and holder of two chattel mortgages on said stock of goods to secure debts which were past due. For the purpose of foreclosing said mortgages the bank seized and took possession of the stock of goods. At about this point of time the several firms of Clement Bane & Co., Reed, Jones & Co., Lockwood, Englehart & Co., Mack, Stadler & Co., and V A. Crowley, general creditors of said Tessier, severally sued out writs of attachment against him, placed them in the hands of N. Herron, sheriff, and caused him to levy upon the said stock of goods. Thereupon the bank commenced this action of replevin, and such action was had thereon that the said stock of goods were re-delivered to it.

It appears that that the above named several firms of attaching creditors were represented by as many different firms of attorneys, each of whom, after the first, filed what purport to be amended answers of defendant Herron, in the nature of special pleas, setting up the attachment of the clients of the attorney, filing such amended answers respectively as a defense to said action of replevin in their behalf. No little confusion in the presentation of the case is attributable to this practice, and I refer to it chiefly for the purpose of saying that it is quite established as the law under our statutes and system of practice, that a general denial, in an action of replevin, puts in issue every material allegation of the petition, and under it the defendant may give evidence of any special matter amounting to a defense to the plaintiff's cause of action. See Richardson v. Steele, 9 Neb. 483, 4 N.W. 83, and cases there cited. Also Cool v. Roche, 15 Neb. 24 17 N.W. 119.

There was a trial to the court (a jury being waived) which found and rendered judgment as follows: "The court finds that at the commencement of this action the plaintiff was entitled to the possession of the property replevied by virtue of two chattel mortgages, and by virtue of said chattel mortgages the plaintiff had a special property in the said property replevied in this action of the value of the amounts due on the notes secured by said mortgages, to-wit, $ , and that the value of the property replevied was the said amount due on said mortgages, together with the further sum of $ 1,821, the value of the balance after satisfying said mortgages, making the whole value of the property $ . The court further finds that the plaintiff has disposed of all of the said goods and made a return thereof impossible, and that plaintiff out of the proceeds of said goods has satisfied the said two mortgages, and after paying the same, the balance of said goods was worth $ 1,821, balance plaintiff should have turned over to defendants, and that defendants are entitled to judgment for said sum of $ 1,821 and interest. That damages of plaintiff for the wrongful detention is $ 5, and should draw interest at 7 per cent. from the commencement of this action, now amounting to $ 5.70. That said $ 1,821 draw interest from June 1, 1883, and now amounts to $ 2,075.94 as the amount of judgment in favor of defendants. * * * It is therefore ordered, adjudged and decreed by the court that the mortgages in favor of plaintiff on the said property in controversy be and the same hereby are satisfied in full, and that the defendants have and recover of and from the plaintiff the said sum of $ 2,075.74 so as aforesaid found due, and that the plaintiff have and recover of and from the defendant the said sum of $ 5.70, its damages herein found due, and that the defendants pay the costs of this action, taxed at $ ," etc.

After the above finding was made by the court, and before the rendition of the judgment, motions for a new trial were made respectively by the plaintiffs and by Clement Bane & Co., both of which were overruled. It should be stated that before the trial the several firms of attaching creditors hereinbefore named were by order of the court, upon their joint application, substituted for the said N. Herron, sheriff, as defendants. The cause is brought to this court on error by the plaintiff as well as by defendant Clement Bane & Co.

The bank assigns eight grounds of error, five of which are for the admission of improper evidence. The sixth is for error in the rendition of judgment against the plaintiff for the overplus remaining after the payment of said mortgages, and after the same had been taken away from the plaintiff by order of the county court on plaintiff's answer as garnishee, and after $ 500 worth of said surplus had been set aside to said Tessier as his exemption by order of the county court and delivered to him. The other two are formal.

The defendants, Clement Bane & Co., assign seven grounds of error, four of which are for the admission of improper evidence and three for error in the findings and judgment.

As to the errors assigned by either party for the admission of improper evidence, it is scarcely necessary to repeat what has been so often said in this court, that in a cause tried to the court without the intervention of a jury, errors of that character cannot be considered. The case will then necessarily turn upon the point as to whether the judgment is sustained by the evidence. This point is raised by the petition in error on either side.

As to whether the evidence is sufficient to sustain that part of the judgment which is in favor of the plaintiff in the court below, that at the time of the commencement of this action the plaintiff was entitled to the possession of the property replevied, there can be no question. Indeed it is substantially admitted by the answer of the defendant sheriff, and was sufficiently proved by the presentation and proof of the mortgage executed by Tessier to the bank. Whether the...