Cinfel v. Malena

• Decision Date: 08 January 1903
• Docket Number: 12,453
• Citation: 93 N.W. 165,67 Neb. 95
• Parties: FRANK CINFEL v. W. J. MALENA ET AL
• Court: Nebraska Supreme Court

93 N.W. 165

67 Neb. 95

FRANK CINFEL v. W. J. MALENA ET AL

No. 12,453

Supreme Court of Nebraska

January 8, 1903

ERROR from the district court for Stanton county. Replevin action commenced originally in county court. Tried below before GRAVES, J. Judgment for plaintiffs. Affirmed.

AFFIRMED.

William Wallace Young and George A. Eberly, for plaintiff in error.

John A Ehrhardt, contra.

BARNES C. OLDHAM and POUND, CC. concur.

OPINION

BARNES, C.

This action was originally commenced in the county court of Stanton county, by W. J. Malena, Frank Trojan and Joseph Kabas, who claimed to be joint owners of a certain threshing machine and horse power, to recover the immediate possession thereof from Frank Cinfel and others. From a judgment of the county court an appeal was taken to the district court, and the cause was there tried to a jury. The result of the trial was a verdict in favor of the plaintiffs, and judgment was entered thereon. From that judgment the defendant Frank Cinfel prosecutes error to this court.

The claims of the respective parties, and facts developed upon the trial, are substantially as follows: It was claimed on the part of the plaintiffs in the court below that on the 20th of June, 1897, Joseph Malena, the father of the plaintiff W. J. Malena, together with one John Kabas and one Anton Cinfel, purchased the threshing machine and horse power in question in partnership, and became the joint owners thereof, each owning a one-third interest therein. It appears that these parties ran the machine during that year, and the year following, and it is contended that each of them received one-third of the profits which accrued from its use. In 1898 Joseph Malena sold and conveyed his one-third interest therein to his son, W. J. Malena, one of the plaintiffs in the court below. It also appears that John Kabas, one of the original purchasers of the machine, sold and conveyed his one-third interest therein to his son, Joseph Kabas, who is also one of the plaintiffs in the lower court. It further appears that in the month of May, 1899, the one-third interest in the property, which it is claimed was owned by Anton Cinfel, was sold under an execution issued on a judgment of the district court for Stanton county against the said Anton Cinfel and in favor of the Aultman-Taylor Machinery Company, and the same was purchased by Frank Trojan, who thus became the other joint owner thereof. It is claimed that the plaintiffs in the court below in that manner obtained their title to and ownership of the property in question. A great deal of testimony was introduced to substantiate these claims, and we can say, after a careful examination of the record and bill of exceptions herein, that they were sustained by sufficient evidence. On the other hand, it was contended that at the time of the original purchase of the property in question, John Kabas bought a two-thirds interest therein, that the other one-third was purchased by Joseph Malena, and that Anton Cinfel never had any interest therein. It was further claimed that John Kabas sold and conveyed one-half of his interest in the property to Frank Cinfel, who is his son-in-law, for the sum of $ 125, on the 23d day of August, 1898. It appears that Frank Cinfel did not take possession of the property, or make any claim to his alleged one-third of it, during that year; that at the end of the threshing season the machine was stored in a shed on the premises of Joseph Malena, which was constructed out of material purchased and paid for by Malena, Kabas, and Anton Cinfel. It was further shown by the testimony that at the beginning of the threshing season in 1899, W. J. Malena, Frank Trojan and Joseph Kabas jointly took possession of the machine and commenced work with it. After threshing some days Frank Cinfel sent word to his brother-in-law, Joseph Kabas, to come over and do his threshing. Thereupon the machine was moved to the premises occupied by Frank Cinfel, who informed them that he was not quite ready to thresh. The machine was left there on his premises for two or three days, during which time it rained, and the weather was unsuitable for threshing, and when Frank Trojan went to the premises to begin work he found the machine running, and was told that Frank Cinfel claimed to be the owner of a one-third interest therein. Cinfel excluded Trojan from the use of the machine, and refused to deliver the possession of it to him and the other joint owners thereof. Thereupon a suit was commenced in the county court to recover possession of the property, but upon finding that there was a defect of parties, the action was dismissed, and the property returned by the officer and others to the possession of Frank Cinfel, and was placed on his premises where it was situated before the commencement of the action. This action was afterwards commenced in the name of W. J. Malena, Frank Trojan and Joseph Kabas, as plaintiffs, against Frank Cinfel and others, defendants. It is impossible to quote the testimony or to give even a summary statement of it, because it is very voluminous. It is sufficient to say that the evidence was conflicting on the questions in dispute, but was amply sufficient to sustain the findings of the jury, which necessarily included the fact of the former ownership of one-third of the property by Anton Cinfel, the fact of the sale of his interest to Frank Trojan, and the further fact that Frank Cinfel had no interest whatever therein.

1. It is first contended by the plaintiff in error that the defendants were mistaken in their remedy; that an action in replevin would not lie to determine the right of possession to and the ownership of an undivided one-third interest in the property in question. It must be conceded that a partner or joint owner of personal property can not maintain replevin against his copartner, or another joint owner, to recover his undivided interest therein. This case, however, is not within that rule. This is a suit where all of the partners or joint owners of the property seek to obtain the possession...