Crutts v. Wray

• Citation: 27 N.W. 634,19 Neb. 581
• Parties: CRUTTS v. WRAY.
• Decision Date: 14 April 1886
• Court: Supreme Court of Nebraska

19 Neb. 581

27 N.W. 634

CRUTTS

v.WRAY.

Supreme Court of Nebraska.

Filed April 14, 1886.

Error from Hitchcock county.

J. Byron Jennings, for plaintiff.

No appearance for defendant.

REESE, J.

This was an action of replevin. Plaintiff, being defeated in the district court, brings the cause into this court for review by proceedings in error. There was no motion for a new trial, and hence we cannot examine as to any of the alleged errors which occurred prior to the rendition of the judgment. This is fully settled by the adjudications of this court, and must be adhered to. Cropsey v. Wiggenhorn, 3 Neb. 108; Singleton v. Boyle, 4 Neb. 414; Horacek v. Keebler, 5 Neb. 356; Hosford v. Stone, 6 Neb. 380.

The verdict of the jury was as follows, (omitting title of the case:) “We, the jury in this case, being duly impaneled and sworn, do find and say that at the time of the commencement of this case the defendant had a special ownership and property in the horse in question to the amount of $78; that said defendant was and is now entitled to the immediate possession of said horse; that said defendant is entitled to recover of and from said plaintiff one cent damages for wrongfully taking the same; and that said horse is of the value of $65.” The judgment, after reciting the verdict of the jury, was as follows: “It is therefore considered by the court that the defendant have a return of the property taken on said writ of replevin, or, in case a return of said property cannot be had, that he recover of said plaintiff a special ownership and property in said horse, assessed at $78, and his damage for withholding the same, assessed at one cent, and costs of suit, taxed at $27.18.”

It will be seen that the judgment is for $13 more than the actual value of the property. Section 191 a of the Civil Code provides that the judgment “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,” etc. The true measure of damages is the value of the right of possession, within the value of the property. The jury found the value of the possession to be $78. They also found the value of the property to be $65. This verdict complied with the requirements of section 191 of the Civil Code, and afforded all the data necessary upon which to render a correct judgment, which should have been for a return of the property, and, in case a return could not be had, then the value of the possession,...