Arcadia State Bank v. Nelson

• Decision Date: 09 May 1986
• Docket Number: No. 85-226,85-226
• Citation: 386 N.W.2d 451,222 Neb. 704
• Parties: ARCADIA STATE BANK, a Nebraska Corporation, Appellant, v. Carl R. NELSON et al., Appellees.
• Court: Nebraska Supreme Court

Page 451

386 N.W.2d 451

222 Neb. 704

ARCADIA STATE BANK, a Nebraska Corporation, Appellant, v. Carl R. NELSON et al., Appellees.

No. 85-226.

Supreme Court of Nebraska.

May 9, 1986.

Syllabus by the Court

1. Replevin. Replevin is an action for possession only and does not properly lie against one who is not, at the time of the commencement of the action, in possession of any of the property sought to be recovered.

2. Replevin: Liability. The object of an action of replevin is to recover specific personal property, and liability for the value of the property accrues only if a return of the property cannot be had.

3. Replevin: Parties. One who claims title to or the right to the possession of property replevied, adversely to the plaintiff, is not a necessary party.

4. Replevin: Parties. The person in possession of the property sought to be replevied is ordinarily the proper and only necessary party defendant.

5. Replevin: Parties. Replevin will not lie against one who is not detaining the property when the writ is sued out. It is the condition of things when the suit is commenced which furnishes the ground for the action.

6. Replevin. As a general rule, since the main issue in a replevin action is one of title and right to possession, all matters foreign thereto must be excluded from consideration and are not available as defenses.

7. Replevin: Proof. The burden is on the plaintiff in replevin to establish facts necessary for him to recover, and these must be shown to have existed at the time the action was commenced. 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.

8. Replevin. The cardinal question in every replevin action is whether the plaintiff therein was entitled to the immediate possession of the property replevied at the commencement of the action.

9. Replevin. A plea of the right to possession in a third person cannot be sustained unless the right is an absolute one.

10. Summary Judgment: Pretrial Procedure. Where a party properly serves a request for admission of relevant matters of fact or the genuineness of relevant documents, and all objections thereto are heard and appropriately denied by the court, and the other party has been ordered to respond thereto, his failure to do so within the time allotted constitutes an admission of the facts sought to be elicited. In such situation a motion for summary judgment is appropriate and may be granted if admissions made or failure to deny as required by the statute, together with the pleadings, show that there is no genuine issue as to any material fact or that the court is without jurisdiction of the subject matter.

11. Pretrial Procedure: Rules of the Supreme Court. When a request for admission is made under Neb.Ct.R. of Disc. 36 (rev.1983), the party served must answer, even though he has no personal knowledge, if the means of obtaining the information are available to him. It is not a sufficient answer that he does not know, when it appears that he can obtain the information. It is immaterial that the plaintiff is acquainted with the facts as to which admission is sought. The purpose of the rule is to expedite the trial and to relieve parties of the cost and inconvenience of proving facts which will not be disputed on the trial, the truth of which can be ascertained by reasonable inquiry.

12. Pretrial Procedure. A bad response to a request for admission is treated as no response at all, and hence as an admission.

Curtis A. Sikyta, Ord, for appellant.

No appearance for appellees.

KRIVOSHA, C.J., and BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

KRIVOSHA, Chief Justice.

The instant case once again points up how some cases are destined to go from bad to worse no matter how much effort the trial court may exert in attempting to assist the parties. The appellant, Arcadia State Bank (Bank), commenced this action by filing a petition in replevin in the district court for Valley County, Nebraska, seeking the immediate possession of certain items of personal property previously pledged to the Bank by the apparent owner, Carl Nelson, all of which were in the possession of Carl Nelson at the time suit was commenced. At the time that the petition in replevin was filed by the Bank, the records in the office of the clerk of Valley County, Nebraska, disclosed that the debtor, Carl Nelson, had executed a financing statement in favor of his son, an appellee in this case, Jerry Nelson. Jerry Nelson's claim, therefore, to the personal property sought to be replevied by the Bank apparently was some interest in the property acquired by reason of a financing statement and not by reason of any ownership interest. It is difficult for us to be certain as to this, however, as Jerry Nelson did not file a brief in this court. On March 2, 1984, both Carl Nelson and Jerry Nelson filed answers consisting of a general denial. Carl Nelson's wife, Ann, also filed an answer. She has not, however, appealed from the judgment entered against her, and for the purposes of this appeal can hereafter be disregarded.

Thereafter, on May 24, 1984, the Bank served requests for admission and interrogatories on both the debtor, Carl Nelson, and his son, Jerry Nelson. Neither party filed answers to these filings, and on September 18, 1984, the Bank filed a motion seeking to have the court determine that the requests for admission were deemed admitted by reason of the Nelsons' failure to file answers. See Neb.Ct.R. of Disc. 36 (rev.1983). At that time the Bank also moved the court to compel answers to interrogatories, which had previously been served and were unanswered, and for attorney fees and sanctions pursuant to Neb.Ct.R. of Disc. 37 (rev.1983). Additionally, the Bank filed a motion seeking summary judgment against all defendants. A hearing on all of these motions was held on October 31, 1984, a hearing at which Jerry Nelson failed to appear.

The motion for summary judgment was supported by the Bank's petition and its affidavit in replevin, as well as by a host of documents, including the affidavit of Robert L. Sestak, vice president of the Arcadia State Bank. All that the Nelsons filed in response to the motion for summary judgment were their previous answers, which consisted of a general denial. The district court, in its order, recites the fact that the court advised the defendant Carl Nelson, the only defendant appearing at the hearing, that if he did not present further evidence the court would have no option but to find the matters requested to be deemed admitted, and then to probably grant the plaintiff's motion for summary judgment. The order then goes on to provide:

When the Defendant continued to state to the Court that this matter was one that should be determined by the Federal District Court and that he did not did [sic] get proper representation from his attorney and did not understand the proceedings, the Court determined that the Defendant should be given a very short period of time to file any Answers to the Requests for Admissions and Interrogatories.

The order then provides that "the Defendant, Carl R. Nelson, as well as the Defendants, Jerry Nelson and Ann Nelson shall be given until 5:00 p.m. on November 2, 1984, to Answer to the Requests for Admissions and Interrogatories served upon them by Plaintiff on or about May 24, 1984...." This was done even though Jerry Nelson never asked for additional time. The court then continued the matter until November 5, 1984, at 1 p.m. On November 2, 1984, the defendants Carl Nelson and Jerry Nelson filed what they represented to be answers to the requests for admission. Additionally, they filed answers to the interrogatories. However, the answers to interrogatories were not offered in evidence and must therefore be disregarded. Another hearing was held before the district court on November 5, 1984, and once again Jerry Nelson failed to appear.

Following the hearing on November 5, 1984, the district court entered a journal entry which provided in part as follows:

Having now reviewed the exhibits, and all evidence presented at the hearing of November 5, 1984, the Court finds that the Defendant, Carl R. Nelson has failed to specifically deny his signature on the notes offered by the Plaintiff, and pursuant to Uniform Commercial Code, Section 3-307, the signatures are deemed admitted and, further, that the promissory notes are valid and enforceable due to the Defendant's failure to allege defenses as necessary under U.C.C., Section 3-307. The Court further finds that the stated Defendant has failed to raise defenses to the financing statements presented by the Plaintiff and the same are, therefore, valid and enforceable.

The order then goes on, however, to provide: "As to the other Defendants named, however, there has been an issue raised by their pleadings as to whether Jerry Nelson and Ann A. Nelson may have some interest in the specific property claimed by the Plaintiff." In fact, the answers filed by Jerry Nelson and Ann Nelson were virtually identical to the answer filed by Carl Nelson. Each denied that Carl Nelson was the sole owner of the property sought to be replevied.

The order then concludes by finding that judgment should be entered against Carl R. Nelson in favor of the plaintiff. The balance of the motion as to the other defendants, including Jerry Nelson, however, was denied.

An examination of the purported admissions ultimately filed by Jerry Nelson on November 2, 1984, more than 5 months after the request was served upon him, reveals that they are, at best, evasive and inconclusive. Many of the requests for admission are denied on the basis that Nelson does not have sufficient knowledge to form an opinion as to the truth of the matter, contrary to Rule 36. Several of the requests for admission are objected to because the admissions call for legal...