Dietrich v. Lincoln & Northwesten R. R. Co.

• Decision Date: 21 June 1882
• Citation: 13 N.W. 13,13 Neb. 43
• Parties: DORA DIETRICHS, PLAINTIFF IN ERROR, v. THE LINCOLN & NORTHWESTERN R. R. CO., DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

13 N.W. 13

13 Neb. 43

DORA DIETRICHS, PLAINTIFF IN ERROR, v. THE LINCOLN & NORTHWESTERN R. R. CO., DEFENDANT IN ERROR

Supreme Court of Nebraska

June 21, 1882

THIS was an action of replevin brought by the Lincoln and Northwestern Railroad Company against Dora Deitrichs in the district court of Platte county, to recover possession of a one-story frame dwelling located on block 66, in the city of Columbus. The cause was sent to a referee, who reported as follows:

First. That the plaintiff was, at the time of the commencement of this action, the owner and entitled to the immediate possession of the property described in plaintiff's petition.

Second. That the said property was unlawfully detained by defendant.

Third. That the plaintiff being the owner of the house in question on or about the day of May, 1880, moved said house upon lot 5, in block 66, in the city of Columbus.

Fourth. Plaintiff, in moving said house upon said lot, was under the belief that it was being moved upon the land of the plaintiff.

Fifth. That plaintiff moved said house upon said lot for temporary purposes only, and with no intention of affixing the same to the realty.

Sixth. That the ground upon which said house was placed was uneven and that the same was placed upon wooden blocks, some of which rested upon the surface of the ground and some of which entered into the ground fifteen inches.

Seventh. That said lot was, at the time said building was so moved upon the same, owned by one Barnes, a resident of New York.

Eighth. That said defendant purchased said lot from said Barnes by deed dated the tenth day of November, 1880, for $ 100.

Ninth. That Barnes did not know that said building was upon said lot until after the commencement of this action.

Tenth. That plaintiff, after placing said house upon said lot offered and advertised said house for sale.

Eleventh. That in the purchase of said lot by defendant, William Dietrichs, the husband of defendant, conducted the negotiations, and made the purchase for and on behalf of the defendant.

Twelfth. That the said William Dietrichs knew at the time of said purchase that the house was moved on to the same by plaintiff and claimed by plaintiff.

Thirteenth. That the said house is of the value of $ 350.

Fourteenth. That defendant was the owner of lot 5 in block 66 and in possession thereof, and occupant of said house at the time of the commencement of this action.

As conclusions of law the referee found:

First. That said house was, at the commencement of this action personal property.

Second. That plaintiff was, at the commencement of this action, the owner and entitled to the immediate possession of said house.

Upon a hearing before POST, J., the report of the referee was confirmed, judgment entered for plaintiff, and defendant brought the cause to this court for a review on a petition in error.

AFFIRMED.

McAllister Brothers, for plaintiff in error.

Report of referee not filed in time. DeLong v. Stahl, 13 Kan. 558. Livingston v. Gidney, 25 How. Pr., 1. Gregory v. Cryder, 10 Abbot N. S., 289. Depositions of Edward and George Barnes were inadmissible, because there was no fact therein competent to prove the house personal property. Gilleland v. Schuyler, 9 Kan. 569. Cropsey v. Averill, 8 Neb. 152. The lease by the L. & N. W. R. R. to the B. & M. R. R. was improperly excluded. Code, sec. 408. Tenant v. Rumfield, 11 Ind. 130. Notice to quit should have been given. Riewe v. McCormick, 11 Neb. 261.

Whitmoyer, Gerrard & Post, for defendant in error, on filing of report out of time, cited Keller v. Sutrick, 22 Cal. 472. Foster v. Ryan, 26 How. Pr., 164. Corporate existence not put in issue by general denial. National Life Ins. Co. v. Robinson, 8 Neb. 452. Depositions were admissible. Objections to letter came too late. Code, sec. 390. Case in 11 Neb. 261, is not applicable. She was not entitled to notice to quit. Taylor's Landlord and Tenant, 471, 472.

OPINION

LAKE, CH. J.

Taking the errors complained of in the order of their assignment, the first one is the refusal of the court to set aside the report of the referee, for the reason that it was not filed within the time named in the order of reference. The ground taken by the plaintiff in error that the mere neglect of the referee to file his report on or before the day fixed for him to do so renders his action under the order of reference nugatory, is untenable. The case of De Long v. Stahl, 13 Kan. 558, which her counsel cite in support of that position, does not so hold.

In that case it appeared that the referee did not complete his report, or, in other words, did not perform the judicial duty assigned him within the time limited, but afterwards, wherefore it was held that he was at the time functus officio, and his report unauthorized and void. Robinson v. O'Conner, 12 Neb. 405, 11 N.W. 859. The manual act of handing in or filing of reports by referees is not unfrequently delayed until after the time fixed for this to be done, but we have never known one to be held invalid on that ground. Indeed, in Keller v. Sutrick, 22 Cal. 471, it was held that such delay, even where the time for filing the report was fixed by statute, was of no consequence, and sustained a report assailed for that reason.

The second complaint of error is based upon the failure to prove the corporate existence of the defendant in error. This point is...