Frey v. Drahos

• Decision Date: 11 November 1880
• Citation: 10 Neb. 594,7 N.W. 319
• Parties: FREY AND ANOTHER v. DRAHOS.
• Court: Nebraska Supreme Court

10 Neb. 594

7 N.W. 319

FREY AND ANOTHER

v.DRAHOS.

Supreme Court of Nebraska.

Filed November 11, 1880.

Error to the district court of Cuming county. Tried below before Barnes, J.Crawford & McLaughlin, for plaintiffs in error, cited Bromham v. Martin, 8 Cent. L. J. 357; 7 Wait's Actions and Defences, 592; Hesket v. Fawcet, 11 M. & W. 356; 2 Chit. Plead. (16th Am. Ed.) 469, 470; Lanier v. Trigg, 6 Sm. & M. (Miss.) 641; Besancon v. Shirly, 9 Sm. & M. (Miss.) 45; Fuller v. Pelton, 16 Ohio, 457;Raymond v. Bernard, 12 John. 274.

R. F. Stevenson, for defendant in error, cited McClellan v. Marshall, 19 Iowa, 561.

COBB, J.

The plaintiff in error makes several points upon the admission of testimony by the court below and the striking from the bill of exceptions of the return of the execution. But if there was error in any of these proceedings it was error without prejudice, as, in my view of the case, none of the acts complained of could, in any event, have been material in controlling the final disposition of the case. The first made is that “the facts set forth are not sufficient in law to maintain the action,” etc. But the plaintiffs nowhere in their brief point out in what respect the petition fails in its facts, and, upon a careful examination of it, I fail to see to what part of it the objection applies, or wherein it is defective in substance. I will, therefore, pass to the more meritorious points presented, which may be grouped and considered together:

“ Fifth. That the verdict given in the case is against and contrary to the weight of evidence and the law of the case.

“ Sixth. That the findings of the court upon questions of law and fact are against and contrary to the weight of evidence.

“ Ninth. That the court erred in overruling the motion for a new trial,” etc.

The pleadings and testimony, as preserved by the bill of exceptions, show that on the fourth day of March, 1876, the plaintiff in error, as sheriff of Cuming county, had in his hands for service two writs of execution, aggregating in amount to $312.51, against the Cuming County Grange Company; that on the said day he levied said executions upon the following property as the property of said Cuming County Grange Company, but which property was in the possession of and claimed by the defendant in error, to-wit: one ten-horse-power steam-engine and boiler, one grate bar, five wrenches, one gauge-cock, one cast-iron pump and pipe, one driving belt, four bars of iron, one engine-house, one Fairbanks hay scales complete, one office 10x12 feet; that on the fifteenth day of March, 1876, the defendant in error commenced an action in the district court of Cuming county against the plaintiff in error C. H. Frey, and replevied the above-described property; that the said Charles H. Frey answered and defended in said action; that he levied upon the said goods and chattels as the property of said Cuming County Grange Company by virtue of two writs of execution, etc., denied the ownership of the said Wenzel Drahos, etc.; that on the fourth day of January, 1878, the said cause came on for trial before the said district court, which found in effect that the defendant therein (plaintiff in error Charles H. Frey) did not wrongfully detain the said goods and chattels; that said goods and chattels, when levied upon by said sheriff, Charles H. Frey, were in the possession of the said Wenzel Drahos, who held them under color of title in good faith, but that he did not have the right to the possession thereof at the time of the comencement of the said action.

The court further found that the defendant (plaintiff in error Charles H. Frey) was, by virtue of two executions in his hands as sheriff, etc., and a levy upon said goods and chattels, made by virtue thereof, entitled to the possession thereof; that the value of said goods and chattels was $1,010, etc.; and the said district court rendered judgment upon the said finding, that the said defendant (the plaintiff in error Charles H. Frey) “have a return of the property replevied in the said action, and in case the plaintiff fail for 20 days to return to the said defendant the said goods and chattels, that the said defendant have and recover judgment against the said plaintiff for the sum of $418.51, the amount of said executions and interest to date of this judgment, together with his costs, taxed at $78.83;” that the said property had not been removed by the said Charles H. Frey when he levied upon it, nor was it removed when replevied, but remained in the same place and substantially in the same condition at the time of the rendition of the said judgment as at the time of the levy of the said executions; that on or about the twelfth day of January, 1878, and within 20 days after the rendition of the said judgment, the said property still remaining in the same place and substantially in the same condition as when...