Boyes v. Summers

• Decision Date: 08 November 1895
• Citation: 46 Neb. 308,64 N.W. 1066
• Parties: BOYES v. SUMMERS ET AL.
• Court: Nebraska Supreme Court

46 Neb. 308

64 N.W. 1066

BOYES

v.SUMMERS ET AL.

Supreme Court of Nebraska.

Nov. 8, 1895.

Syllabus by the Court.

1. When this court is asked to declare a statute unconstitutional, the particular section of the constitution which it is claimed the law infringes should be pointed out in the brief filed.

2. By section 15, c. 32, Comp. St., two modes are prescribed for discharging chattel mortgages, viz.: By an entry by the mortgagee, his agent or assignee, on the margin of the index, duly attested by the county clerk; and by the county clerk, when authorized so to do by a written order signed by the mortgagee, and attested by a justice of the peace or some officer having a seal.

3. An order to the county clerk to release a mortgage is invalid, as a release, unless attested as above stated.

4. Under section 15, c. 32, Comp. St., a mortgagee is liable for the damages therein specified for failure to satisfy of record a chattel mortgage, within the period therein named, after demand and the payment of mortgage debt, whether the mortgagee acted in good faith or not, or whatever may have been the motives of such mortgagee. A mere mistake or ignorance, without a corrupt intent, is no defense to such an action.

Error to district court, Garfield county; Harrison, Judge.

Action by William R. Summers and Albert B. Summers, partners under the name of Summers Bros., against Hiram Boyes. Judgment for plaintiffs, and defendant brings error. Affirmed.

Coffin & Stone, T. Darnall, and T. W. Bartley, for plaintiff in error.

Clements Bros., Chas. A. Munn, and J. H. Evans, for defendants in error.

NORVAL, C. J.

This is an action by William R. Summers and Albert B. Summers, partners doing business under the firm name of Summers Bros., against Hiram Boyes, under the provisions of section 15, c. 32, Comp. St., to recover the sum of $50 for failure to discharge a chattel mortgage. From a verdict and judgment in favor of the plaintiffs for the above amount, defendant prosecutes error to this court.

At the commencement of the trial, the defendant objected to the introduction of any evidence, on the ground that the petition did not state a cause of action. By the objection it was intended to raise the constitutionality of said section 15, and, doubtless, the validity of said law might be brought to the attention of the court in that mode. The only reference made in the brief of plaintiff in error to the validity of the statute or to the ruling upon the objection taken in the court below to the sufficiency of the petition is the following paragraph: “This, as we understand, was intended by counsel who tried the case for defendant in the court below to raise the question of the constitutionality of the law under which plaintiff was seeking a recovery. We submit the same upon that theory.” The foregoing is insufficient to call our attention to the particular constitutional provision which it is claimed the law in question contravenes. The constitution of this state contains 18 articles, each of which, except the second, fourth, and twelfth, is composed of several sections. Whether the statute authorizing the recovery by the mortgagor of a fixed sum for the failure of a mortgagee to release of record a chattel mortgage after the debt thereby secured has been paid is repugnant to some provision of the bill of rights, the article in the fundamental law relating to suffrage, the one upon the subject of education, or some one of the sections of article 3 restricting the powers of the legislature in the mode of enacting laws, we are left solely to conjecture. The constitution of Nebraska is too lengthy for us to attempt to review and consider all of its provisions in a single opinion; and, counsel having failed to point out the particular section thereof which it is claimed the law infringes, we will dismiss the subject without consideration.

The first assignment of error is as follows: “The court erred in giving paragraphs 1, 2, 3, and 3 1/2 of the instructions.” The only criticism made in the brief is upon the second instruction given by the court on its own motion. No exception was taken in the court below to the instruction numbered 1, nor was the giving thereof assigned as error in the motion for a new trial. Besides, it merely, and, we think, very fairly, stated to the jury the issues to be tried as presented by the pleadings. There being no reversible error in the giving of one of the instructions included in the group covered by the first assignment, we very properly might, under the decisions of this court, decline to consider the second instruction. We are, however, satisfied that it is free from criticism. It is as follows: “You are instructed that the laws of this state provide that a chattel mortgage, when satisfied, shall be discharged by an entry by the mortgagee, his agent or assignee, on the margin of the book or index in which the filing of the mortgage has been entered as provided by law, such discharge to be attested by the clerk. It is also provided that the county clerk may discharge a mortgage on the presentation or receipt of an order in writing, signed by the mortgagee, and attested by a justice of the peace and the assignee, or their legal representatives, after full performance of the conditions of the mortgage, who, for the space of ten (10) days after being requested, shall refuse or neglect to discharge the same as provided in this section, shall be liable to the mortgagor, his heirs or assigns, in the sum of fifty (50) dollars damages, and also for all actual damages sustained by the mortgagor occasioned by such neglect or refusal; said damages to be recovered in the proper action.” This instruction, in every material respect, is a literal copy of the section of the statute under which this action is brought, and therefore it cannot be claimed to be incorrect as an abstract proposition of law. It is argued that the...