Barstow v. Wolff

• Decision Date: 28 February 1947
• Docket Number: 32176.
• Citation: 26 N.W.2d 390,148 Neb. 14
• Parties: BARSTOW et al. v. WOLFF.
• Court: Nebraska Supreme Court

26 N.W.2d 390

148 Neb. 14

BARSTOW et al. v. WOLFF.

No. 32176.

Supreme Court of Nebraska

February 28, 1947

Syllabus by the Court.

1. A plaintiff in replevin against whom a judgment has been rendered owes the affirmative duty of returning the property replevied to the defendant.

2. Under such circumstances the plaintiff has no right to elect to keep the property and pay the value thereof in lieu of the return of the property.

3. The alternative money judgment provided for by statute affords a measure of relief only when the property cannot be returned.

4. A defendant in such a case is entitled to exhaust the powers of the court in securing a return of his property before he is obliged to accept the alternative money judgment.

5. The denial, in such a case, of an application for a special execution to secure the return of the property only is a denial of a substantial right and constitutes a final order from which an appeal may be taken.

YEAGER, J dissenting.

Mothersead & Wright, of Scottsbluff, for appellant.

Heaton &amp Clinton, of Sidney, for appellees.

Heard before PAINE, CARTER, YEAGER, and CHAPPELL, JJ., and NUSS, District Judge.

CARTER Justice.

This is a replevin action in which the right of possession of the property replevied was found to be in the defendant. The defendant thereupon applied to the district court for a special execution commanding the sheriff to return the property to him. The trial court denied the application and defendant appeals.

The record shows that plaintiffs replevied a quantity of livestock including 47 calves from the defendant. At the trial the jury found the right of possession of the livestock to be in the defendant and fixed the value of the calves at $1,880, they being the only property involved in this appeal. The trial court entered judgment on the verdict, adjudging that defendant was entitled to possession of the property; and in case the calves could not be returned, that he have judgment for $1,880, the value fixed by the jury. The defendant then applied to the court for an order directing the clerk of the district court to issue a special execution for the return of the calves only. The application was denied and defendant contends that the denial of the application was error prejudicial to the rights of the defendant.

We think it is elemental that a plaintiff who has obtained possession of property by replevin is required, after judgment for the defendant in the replevin action, to return the property to the defendant. The plaintiff under such circumstances has no right to elect to keep the property and pay the value thereof instead of returning the property. 1 Freeman on Executions 3d Ed., § 4, p. 9; McIntosh Livestock Co. v. Buffington, 116 Or. 399, 241 P. 393; 108 Or. 358, 217 P. 635; Swantz v. Pillow, 50 Ark. 300, 7 S.W. 167, 7 Am.St.Rep. 98. We find no case deciding this precise point in this state. On the other hand, it has been held that a defendant under such circumstances is required to accept the return of the property replevied as a satisfaction of the judgment. The judgment is in the alternative simply for the purpose of fixing the value so as to afford a measure of relief where the property cannot be returned. It seems to us that if a defendant is required to accept the property replevied as a satisfaction of the judgment in his favor, he has the correlative right to demand the return of the property and to use the enforcing powers of the court in obtaining such a satisfaction of his judgment.

It must not be overlooked that the basis of a replevin action is the right of possession of the property involved. When a plaintiff takes possession of chattel property by replevin and fails to sustain his case, there is an absolute duty on his part to return the property to the defendant, and this court has so held. Eickhoff v. Eikenbary, 52 Neb. 332, 72 N.W. 308. The relief granted by the judgment for the defendant is primarily the requiring of the return of the property. It is only when the defendant cannot secure a return of his property after the powers of the court have been exhausted in his behalf that he is obliged to accept the alternative money judgment. 1 Freeman on Executions, 3d Ed § 4, p. 9. The provision of the statute R.S.1943, § 25-10,104, providing for the fixing of the value of the property taken and for a money judgment when a return cannot be had, is in derogation of the common law. It is a remedy that is available to the defendant when the enforcing processes of the court fail to secure a return of the property. Kunz v. Nelson et al., 94 Utah 185, 76 P.2d 577, 115 A.L.R., 1322; Waite v. Dolby, 8 Humph. (Tenn.) 406; Robinson v. Richards, 45 Ala. 354; Garland v. Bugg, 5 Munf. (Va.) 166. The practical reason for such a rule is apparent in the case before us. It is altogether possible that the 47 calves here involved were worth only $40 per head at the time of the trial, as the jury found; yet, due to subsequent rises of the market and the increased growth of the calves, or because of some special value to the defendant, they could now be worth much more than that amount to him. The defendant is not obliged to permit a plaintiff to elect to keep the property and pay the judgment if it be advantageous, or to return the property if its retention...