C. Aultman & Co. v. Reams

• Decision Date: 10 January 1880
• Citation: 4 N.W. 81,9 Neb. 487
• Court: Nebraska Supreme Court
• Parties: C. AULTMAN & CO., PLAINTIFFS IN ERROR, v. ANDREW J. REAMS, DEFENDANT IN ERROR.

9 Neb. 487

4 N.W. 81

C. AULTMAN & CO., PLAINTIFFS IN ERROR,

v.ANDREW J. REAMS, DEFENDANT IN ERROR.

Supreme Court of Nebraska.

Filed January 10, 1880.

Error from the district court for Franklin county.Lamb, Billingsley & Lambertson, for plaintiffs in error.

C. J. Dilworth, for defendant in error.

COBB, J.

There can be no doubt of the correctness of the law laid down by the counsel of the plaintiffs in error, to-wit, that the plaintiff has the right to dismiss his case, without prejudice to a future action, at any time before the final submission of the case to the jury, as a general proposition of law. But is this rule universal? Does it apply to an action of replevin?

In this action, after the property has been delivered to the plaintiff, the position of the parties becomes, to all practical intents and purposes, reversed. The proceedings have already served the preliminary purpose desired by the plaintiff. He has reduced the property to possession, and should no further step be taken in the case he would be content. But the defendant, who also claims the possession of the property, has an interest in a speedy trial as the only means of restoring the property to his possession.

It seems to me that it could not have been the intention of the framers of the statute giving the plaintiff the right to dismiss his case, without prejudice, at any time before the same is given to the jury, that the same should apply to replevin. What good would it have done the plaintiff to have dismissed his case?

Section 190, of c. 57, Gen. St. 554, provides that “if the property has been delivered to the plaintiff, and judgment be rendered against him, on demurrer, or if he otherwise fail to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, empanel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury shall be satisfied that said property was the property of the defendant at the commencement of the action, or if they shall find that the defendant was entitled to the possession only of the same at such time, then and in either case they shall assess such damages for the defendant as are right and proper; for which, with costs of suit, the court shall render judgment for the defendant.” Section 7 of an act passed February 26, 1873, found on page 713 of the Gen. St., provides that “the judgment in the cases mentioned in sections 190 and 191, and in section 1041 of said Code, shall be for a return of the property or the value thereof, in case a return cannot be had or the value of the possession of the same, and for damages for withholding said property, and costs of suit.”

Now, if the court had permitted the plaintiff to dismiss his suit, as ...