Creighton v. Haythorn

• Decision Date: 05 November 1896
• Parties: CREIGHTON v. HAYTHORN ET AL. (HUGHBANK ET AL., INTERVENERS).
• Court: Nebraska Supreme Court

49 Neb. 526

68 N.W. 934

CREIGHTON

v.HAYTHORN ET AL. (HUGHBANK ET AL., INTERVENERS).

Supreme Court of Nebraska.

Nov. 5, 1896.

Syllabus by the Court.

1. An assignment of error, directed generally against a group of instructions, will be considered no further than to ascertain whether any one thereof was rightly given or rightly refused.

2. Where the defendant in an action of replevin claims a special interest only in the property in controversy by virtue of a mortgage or other lien, his measure of damage, in case the property cannot be returned, is the amount of his lien with interest and cost, within the value of the property.

3. A verdict for the defendant in an action of replevin, whose claim arises from a lien upon the property in controversy, without a finding as to the value of his possession, is not responsive to the issues, and is contrary to law, within the meaning of subdivision 6, § 314, Code Civ. Proc.

Error to district court, Keith county; Neville, Judge.

Replevin by John D. Creighton against Harry Haythorn. John W. Hughbank and another intervened, as defendants. From a judgment against him, plaintiff brings error. Reversed.John R. Brotherton and McClanahan & Halligan, for plaintiff in error.

Grimes & Wilcox, for defendants in error.

POST, C. J.

This was an action of replevin in the district court for Keith county by the plaintiff in error, John D. Creighton, to recover certain horses and colts then in the possession of the defendant therein named, Harry Haythorn, and which were, as charged, unlawfully detained by the latter. The controversy appears to have been settled to the mutual satisfaction of the parties named, and a written stipulation executed and filed, whereby the plaintiff agreed to dismiss said action at his own cost. Subsequently, however, and before a final disposition of the cause, John W. Hughbank and Lucy Hughbank were, by order of court, permitted to intervene for the purpose of asserting a right to the possession of said property, adverse to the claims of both plaintiff and defendant, and upon the issues tendered by said interveners the cause was prosecuted to judgment in their favor for the return of the property and the sum of $43 damages for the unlawful detention thereof, and which has, by the plaintiff, been removed into this court for review.

The claim of the interveners rests upon the fact, as alleged, that the live stock which is the subject of the controversy was taken up by them while trespassing upon their cultivated lands, and by them placed in the possession of the defendant Haythorn to be safely kept and cared for under their direction. Interveners also charge that they had, previous to the commencement of this action, fully complied with the provisions of statute, in order to preserve their lien upon said stock for the damage done to their growing crops, which, together with the cost of impounding, is laid at the sum of $200.

The allegations of error which relate to the giving and refusing of instructions may be dismissed with the observation that the record discloses no exception to those given, while those refused are grouped in a single assignment of the motion for a new trial. It is not seriously contended that the court erred in refusing each of the instructions requested, and there was certainly no error in the refusal of paragraph No. 1, since the proposition therein stated had been given in substantially the same language...