Ensign v. Roggencamp

• Decision Date: 01 July 1882
• Citation: 12 N.W. 811,13 Neb. 30
• Parties: GRAN. ENSIGN, PLAINTIFF IN ERROR, v. WILLIAM ROGGENCAMP, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

12 N.W. 811

13 Neb. 30

GRAN. ENSIGN, PLAINTIFF IN ERROR, v. WILLIAM ROGGENCAMP, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 1, 1882

THIS was an action brought in the district court of Lancaster county, by Roggencamp against Ensign, as sheriff of said county. Roggencamp was the mortgagee of certain chattels. P J. and Mary A. Grant were the mortgagors, and Ensign, as sheriff, levied upon and sold said property to satisfy an execution issued on a judgment against P. J. Grant. Plaintiff claimed judgment for the value of the property and costs, and recovered the same before POUND, J., to reverse which Ensign came here upon a petition in error.

AFFIRMED.

Harwood & Ames and Mason & Whedon for plaintiff in error.

1. Petition does not state a cause of action. Brunswick v McClay, 7 Neb. 138. B. & M. v. Lancaster Co., 4 Neb. 307. Same v. York County, 7 Neb. 487. The mortgage was void on its face. Mortgagor was in possession at time of levy, and even if the mortgage had been given for a debt not due, the failure of the mortgagee to take possession for an unreasonable time would have rendered the mortgage void per se, and what is a reasonable time is a matter of law for the court and not of fact for the jury. A delay of three or four days is unreasonable, unless occasioned by some circumstance rendering it inevitable. Hanford v Obrecht, 49 Ill. 146. Arnold v. Stock, 81 Ill. 407. Chapin v. Whitsett, 3 Colorado, 315. Travis v. McCormick, 1 Montana, 347. Reese v. Mitchell, 41 Ill. 365. Lemen v. Robinson, 59 Ill. 115.

2. No writ was ever returned "not summoned," so no other writ could issue. Code, section 67.

S. P. Vanatta for defendant in error.

1. This is clearly a case to recover the value of property belonging to defendant in error and taken and converted by plaintiff in error to his own use.

The petition avers that the plaintiff below was the owner of the property; that it was taken by defendant below and converted to his use; that demand was made for the property, which was refused and its value stated at $ 300.00, the value of the property proved and judgment rendered therefor. The mortgage is referred to in the petition and made a part of it, but it is not necessary to refer to it or prove its existence in order to make a complete case. It is only the evidence of ownership or title. There is no omission of any fact necessary to make a clear case of conversion.

2. If one summons is issued in a cause and returned not legally served, the party has a right to issue and serve alias writs until he gets legal service, and all the defendant could ask would be that the costs of the writs not legally served should not be taxed to him.

OPINION

LAKE, CH. J.

The court obtained jurisdiction of the defendant below by the service of the last of the several writs issued against him. Its issue without an order of the court for an alias summons may have been irregular, but it was not void. If the defendant desired to test its regularity he should have appeared in court in obedience to its command and brought his grievance promptly to the attention of the judge. But not having done so, it is now too late to complain. If, perchance, there were a technical error respecting the summons it cannot be said that he was at all prejudiced by...