Field v. Lumbard

• Decision Date: 03 January 1898
• Citation: 73 N.W. 703,53 Neb. 397
• Parties: FIELD ET AL. v. LUMBARD.
• Court: Nebraska Supreme Court

53 Neb. 397

73 N.W. 703

FIELD ET AL.

v.LUMBARD.

Supreme Court of Nebraska.

Jan. 3, 1898.

Syllabus by the Court.

Where, in a replevin suit, the defendant recovers, and judgment is entered absolutely for the value of the property, and not in the alternative, for a return, or its value if a return cannot be had, the sureties on the replevin bond are not liable for the satisfaction of such judgment.

Error to district court, Dodge county; Marshall, Judge.

Action by Marshall Field and others against D. A. Lumbard on a replevin bond. From a judgment for defendant, plaintiffs bring error. Affirmed.Montgomery & Hall and Fred W. Vaughan, for plaintiffs in error.

W. J. Courtright, for defendant in error.

IRVINE, C.

This was an action on a replevin bond, in which a judgment of dismissal was obtained by the defendant. In the replevin action there had been a finding or verdict for the defendants therein, but the judgment was for the value of the property only, and not in the alternative, for a return thereof or its value, as the statute requires; and the defendant herein, the surety on the bond, asserted that he was not charged because of this irregularity. A consideration of this question renders unnecessary an examination of the other questions involved.

It was in one case suggested, without decision, that the provision for an alternative judgment is solely for the benefit of the defendant, and that the plaintiff cannot on that account complain. Goodman v. Kennedy, 10 Neb. 270, 4 N. W. 987. That suggestion was contrary to two prior decisions, holding the requirement mandatory. Hooker v. Hammill, 7 Neb. 231; Moore v. Kepner, Id. 291. The doctrine of the earlier cases has since several times been reaffirmed. Manufacturing Co. v. Dunham, 33 Neb. 686, 50 N. W. 1122;Manker v. Sine, 35 Neb. 746, 53 N. W. 734. It must now therefore be taken as established that the requirement is mandatory, and that either party may insist upon its observance. It was further held in Goodman v. Kennedy that, before the plaintiff can be heard to complain that the judgment was absolute, he must make it appear that a return is practicable. This case was cited on this point in the recent case of Eickhoff v. Eikenbary (Neb.) 72 N. W. 308; but the point was not there considered necessary to a decision, and was guarded accordingly. In Manker v. Sine the burden of proof was otherwise stated, and it was made the duty of the defendant to show that a return could not be had. In the case before us nothing appears to show whether or not a return could be had; but we do not think it necessary here to determine where, in a suit between the parties, the burden of proof lies, because, where the action is against the surety on the bond, other principles govern. If, in the original action, the burden is upon plaintiff, it must be because the information and means of proof lie especially in his possession,--a consideration which does not apply to his surety. In Dorrington v. Meyer, 8 Neb. 211, it was held that the sureties cannot complain because the judgment is not in the alternative. The opinion treats this point very briefly, giving as a reason that the sureties may appear in the replevin suit, and have judgment properly entered, and, if they fail to do so, they are bound. The question recurred in Lee v. Hastings, 13 Neb. 508, 14 N. W. 476, and the judgment was reversed apparently for the reason that the...