Deck v. Smith

• Citation: 11 N.W. 852,12 Neb. 389
• Parties: DECK v. SMITH.
• Decision Date: 04 April 1882
• Court: Supreme Court of Nebraska

12 Neb. 389

11 N.W. 852

DECK

v.SMITH.

Supreme Court of Nebraska.

Filed April 4, 1882.

Error from Lancaster county.

L. C. Burr, for plaintiff.

M. H. Sessions, for defendant.

LAKE, C. J.

This is a proceeding in error to obtain a reversal of a judgment of the district court for Lancaster county. The judgment was in an action of replevin brought into that court by appeal from a justice of the peace. The property replevied was four yearling heifers and twelve hogs. The plaintiff in error from whom the property was replevied had seized it in execution of a judgment against W. H. Smith, the husband of the defendant in error, and as belonging to him.

It is first objected to the judgment that the district court acquired no jurisdiction of the subject-matter of the suit by the appeal. This claim is based solely on the ground that the value of the property as alleged in the petition, and found by the jury, exceeded the jurisdiction of a justice of the peace. It appears that the alleged value was increased from $100 before the justice, to $130 in the district court. The value as finally found by the jury was $138.75 This, it is contended, shows a departure--a new or different cause of action from that brought before the justice of the peace. It is not claimed that the property described in the petition in the district court was any other than that mentioned in the bill of particulars before the justice, and which was actually replevied. There was, therefore, no departure in this respect. Nor is it claimed that the justice was without jurisdiction to render the judgment appealed from. Therefore the jurisdiction of the justice over the subject-matter being conceded, it follows necessarily that the district court, by virtue of its general appellate power, was authorized to hear and determine the case de novo on the appeal.

While it is doubtless true that, in the appellate court, no new cause of action could be properly introduced, nor damages for the unlawful detention of the property in excess of the amount recoverable before the justice, together with a proper allowance for the delay caused by the appeal, be lawfully claimed, it is not true that the natural increase in the value of the property, to whatever extent it went, might not have been both claimed and recovered, where a return, when ordered, could not be had. To hold otherwise might result in the most flagrant injustice. Take for example this very case, where the property in controversy, or the most of it, is shown to have been young stock, which, from its natural growth alone, was probably increasing quite rapidly in value, it is not at all likely that the value in November, 1878, when the case was tried before the justice, was the true measure of the value in March, 1880, when the trial came off in the district court. The plaintiff in error having so disposed of the property pending the litigation that a return could not be had, justice could be done only by requiring of him its value, as the statute in such cases directs. Code, § 191 a; Comp. St. p. 554. The district court having obtained jurisdiction of the case by the appeal, it not only had authority, but it was its duty, to so rule as to do as complete justice between the parties as possible. And if to do this it became necessary to increase the amount claimed, there is no rule of practice preventing it being done. Indeed, such a course is fairly within the contemplation of the Code, as the following provisions clearly show: By section 1010 it provides that in cases appealed to the district court “the parties shall proceed, in all respects, in the same manner as though the action had been originally instituted in the said court;” and by section 144, which confers upon the court an almost unlimited power of amendment “in furtherance of justice.” Dressler v. Davis, 12 Wis. 58, fully sustains us in this view.

It is also claimed that it was error to permit the plaintiff below to show conversion of the property by the defendant during the dependency of the action. The property had been taken and delivered to her under the order of replevin. Afterwards the defendant again seized and sold it under the same judgment. His rights under the last seizure were not different from those under the first one. Indeed, the sale seems to have...