Alliance Loan & Inv. Co. v. Morgan, 33011

Decision Date25 October 1951
Docket NumberNo. 33011,33011
PartiesALLIANCE LOAN & INV. CO. v. MORGAN et al.
CourtNebraska Supreme Court

Syllabus by the Court.

1. The facts necessary to entitle a plaintiff in replevin to succeed in the case must be shown to have existed at the time the action was commenced.

2. Any fact that transpires after the date of the institution of a replevin case is immaterial in the consideration and determination of the merits of the case.

3. A chattel mortgage on a motor vehicle is void as to creditors of the mortgagor unless a notation thereof is made on the face of the certificate of title to the vehicle as required by the applicable statute of the state.

4. The law requires that a plaintiff in a replevin case must recover on the strength of his right in or to the property and not upon any weakness of the interest of the defendant therein.

5. The levy of a valid execution by a sheriff on nonexempt property of the judgment debtor creates in him a special interest in the property and the right to the possession of it.

6. If defendant in an action of replevin has only a special interest in the property because of a lien thereon, a judgment for him must be for a return of the property, or, in the alternative, for the value of the possession thereof if a return cannot be had and for damages for the withholding of the property and costs of the suit.

7. In such a case if the property cannot be returned, the measure of damage of the defendant is the amount of his lien with interest and costs, within the value of the property.

8. In such a case damages for withholding property taken on a writ of replevin may be recovered only if the property is returned to the defendant.

Townsend & Youmans, Scottsbluff, for appellants.

None for appellee.

Before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

Jack E. Mack recovered a judgment against Maurice D. Moran in the district court for Scotts Bluff County, Nebraska, an execution issued thereon was delivered to Mahlon C. Morgan, sheriff of Scotts Bluff County, and it was by him levied upon a Studebaker truck owned by the judgment debtor. He took possession of the truck at the time of the levy and maintained it until the truck was taken from him on a writ of replevin. A mortgage on the truck had been previously given by the judgment debtor to appellees to secure a debt owing to them by him. Appellees instituted a replevin action in the county court and took the truck from the sheriff. The appraisal of the truck showed a value in excess of the jurisdiction of the county court and the case was certified to the district court. Appellees claimed right of possession of the property because of their chattel mortgage. The sheriff justified his possession under the execution and levy thereof.

The parties at the conclusion of the evidence respectively moved for a directed verdict. The jury was discharged and a judgment rendered for appellants for a return of the truck, or, in the alternative, for their special interest therein in the amount of one cent and for damage for the detention of the truck in the sum of one cent and for costs. This is an appeal from that judgment.

The dates are important in this case. The chattel mortgage on the truck was given on March 18, 1949, the debt secured was due on April 18, 1949, and a notation of the mortgage on the certificate of title of the truck was made on May 24, 1949. The judgment in favor of Jack E. Mack was rendered on May 6, 1949. The execution was issued and delivered to the sheriff on May 21, 1949, and he levied it on and took possession of the truck on May 23, 1949, the day before a notation of the chattel mortgage was made on the certificate of title of the truck. The replevin case was commenced on June 1, 1949, and the property was taken from the sheriff on the writ of replevin the next day.

The gist of a replevin action is the unlawful detention of the property at the inception of the suit and the rights of the parties with respect to possession of the property at that time. What takes place thereafter is immaterial in the consideration and determination of the case. The burden is on the plaintiff in replevin to establish facts necessary for him to recover, and these...

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8 cases
  • Barelmann v. Fox
    • United States
    • Supreme Court of Nebraska
    • January 10, 1992
    ...the replevin action was commenced. See Brown v. Hogan, 49 Neb. 746, 69 N.W. 100 (1896). As stated in Alliance Loan & Investment Co. v. Morgan, 154 Neb. 745, 747, 49 N.W.2d 593, 594 (1951), the focus is on the rights of the parties when the action is filed, and "[w]hat takes place thereafter......
  • State Farm Mut. Auto. Ins. Co. v. Drawbaugh
    • United States
    • Supreme Court of Nebraska
    • July 23, 1954
    ...for him to recover, and these must be shown to have existed at the time the action was commenced. See Alliance Loan & Investment Co. v. Morgan, 154 Neb. 745, 49 N.W.2d 593; Bank of Keystone v. Kayton, 155 Neb. 79, 50 N.W.2d 511. Any fact that transpires after the date of the institution of ......
  • State v. Weber
    • United States
    • Supreme Court of New Mexico
    • August 22, 1966
    ...§§ 22--1--1, 24--2--1, 24--2--2, 24--2--3, and 24--2--4 N.M.S.A.1953; Short v. Landes, 42 Del. 510, 39 A.2d 17; Alliance Loan & Inv. Co. v. Morgan, 154 Neb. 745, 49 N.W.2d 593. Nor does it follow that he '* * * therefore had both legal and equitable title * * * and could therefore do with t......
  • Clark v. Oldham, 34262
    • United States
    • Supreme Court of Nebraska
    • May 31, 1958
    ...judgment in an action or replevin, where the verdict is in favor of defendant, is mandatory.' See, also, Alliance Loan & Investment Co. v. Morgan, 154 Neb. 745, 49 N.W.2d 593; Landis Machine Co. v. Omaha Merchants Transfer Co., on rehearing, 142 Neb. 397, 9 N.W.2d 198; Jackson v. Arndt-Snyd......
  • Request a trial to view additional results

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