Ahlman v. Meyer

• Decision Date: 19 January 1886
• Citation: 26 N.W. 584,19 Neb. 63
• Parties: HERMAN AHLMAN, PLAINTIFF IN ERROR, v. MEYER & SCHURMAN, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

26 N.W. 584

19 Neb. 63

HERMAN AHLMAN, PLAINTIFF IN ERROR, v. MEYER & SCHURMAN, DEFENDANTS IN ERROR

Supreme Court of Nebraska

January 19, 1886

ERROR to the district court of Pierce county. Tried below before TIFFANY, J.

AFFIRMED.

Brome & Durland, for plaintiff in error.

W. L Henderson, Fred. J. Fox, and E. F. Gray, for defendants in error.

OPINION

COBB J.

It appears that on the 11th day of June, 1883, one Henry Poggensee was engaged in mercantile business at Plainview Pierce county, and was indebted to sundry persons and firms. Among them, and doubtless his largest creditor, was the firm of Meyer & Schurman, the defendants in error. On that day the said Poggensee executed and delivered to Meyer & Schurman a chattel mortgage, in and by which he granted to them his entire stock of merchandise to secure his indebtedess to them, amounting to seven hundred and forty-eight dollars and seventy-five cents. The mortgage is in the usual form, and authorizes the mortgagees in case the note therein described as falling due June 11th, 1883, is not paid at maturity or in case of the mortgagor attempting to dispose of or remove any of said goods from the county of Pierce, or if at any time the said mortgagees should feel unsafe or insecure, then and in that case to take immediate possession of said goods and chattels and sell the same, etc. It also appears that on the same day the mortgagees caused the said mortgage to be recorded, and applied to the mortgagor and demanded and took possession of the said goods and proceeded to invoice them. It further appears that on the 26th day of the same month the defendant in error, who was sheriff of Pierce county, seized and took the said goods from the possession of the mortgagees by virtue of an order of attachment then in his hands against the property of Henry Poggensee and in favor of Jandt & Tomkins.

The said Meyer & Schurman then brought their action in replevin in the district court of Pierce county against the said sheriff and replevied the said goods. The said sheriff defendant appeared and plead to said action, a trial was had to a jury, which found a verdict for the plaintiffs for the possession of the goods, and damages to the amount of ten dollars. A motion for a new trial being overruled and judgment rendered for the plaintiffs, defendant brings the cause to this court on error.

Plaintiff in error assigns for error the overruling by the court of the motion of the defendant for a non-suit; the giving of paragraphs Nos. 5, 6, and 7 of instructions given by the court on its own motion; the giving of paragraph No. 1 of instructions given by the court at the request of the plaintiffs; and the refusal to give paragraph No. 1 of the instructions prayed by the defendant.

As to the first point, in an action of replevin both parties are said to be actors and equally interested in the court's maintaining jurisdiction of the case and disposing of it on its merits. I know of no case which would justify a court in granting a non-suit in an action of replevin.

The instructions, the giving of which is assigned as error, are as follows:

"5. You are instructed that if you find from the evidence that at the time of the levy of the attachment the plaintiffs were in possession of the property by virtue of the mortgage in evidence, that would be prima facie evidence of ownership, and would entitle them to a verdict unless the defendant has shown by a preponderance of evidence that the mortgage was fraudulent and void.

"6. The real question for you to determine is, whether or not the mortgage was made in fraud, if it was then your verdict should be for the defendant. If not, you should find for the plaintiffs. And this is a question of fact for you to decide from the evidence, consisting of all the facts and circumstances shown to have surrounded the parties at the time of the making of the mortgage and the taking possession thereunder.

"7. You are instructed that a chattel mortgage containing a condition that the mortgagor shall remain in possession thereof and continue to sell the same in the ordinary course of business is void as to other purchasers in good faith and subsequent creditors of the mortgagor. But when the mortgage contains no such conditions the presumption of good faith attaches when the mortgagee is in possession, and the burden of proving fraud is upon him who alleges it."

"1. (Given at the request of plaintiffs). The court instructs the jury that in this case the burden of proving property, so far as the right of property is concerned, is upon the plaintiff and if possession of the property has been shown by the evidence to...