Gillespie v. Brown & Ryan Brothers

• Decision Date: 10 September 1884
• Citation: 20 N.W. 632,16 Neb. 457
• Parties: WILLIAM M. GILLESPIE, PLAINTIFF IN ERROR, v. BROWN & RYAN BROTHERS, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 632

16 Neb. 457

WILLIAM M. GILLESPIE, PLAINTIFF IN ERROR, v. BROWN & RYAN BROTHERS, DEFENDANTS IN ERROR

Supreme Court of Nebraska

September 10, 1884

ERROR to the district court for Lancaster county. Tried below before POUND, J.

AFFIRMED.

R. D Stearns, for plaintiff in error.

Brown & Ryan Bros, pro se.

OPINION

REESE, J.

This is an action of replevin. The suit was instituted by the defendants in error who claimed the possession of the property in dispute by virtue of a chattel mortgage executed by Caroline A. Van Meter and Edward A. Van Meter to secure the payment of certain promissory notes. The mortgage was executed on the first day of June, 1882, and a copy was filed in the office of the county clerk on the fifth day of the same month.

The plaintiff in error, who was defendant below, claimed the possession of the property by virtue of a levy of an order of sale thereon in certain attachment proceedings in the county court of Lancaster county. These attachment proceedings were commenced on the sixth of June, 1882, and the levy of the order of attachment was made on the seventh.

The district court referred the case to a referee, who took the testimony and reported to the court his findings of fact and conclusions of law. The findings were, in the main, in favor of defendants in error. The plaintiff in error filed exceptions to the report of the referee, and a motion for a new trial. The defendants in error filed a motion to modify the rulings and findings of the referee, and for confirmation of the report as thus modified. The exceptions and motion of the plaintiff in error were overruled. The motion of the defendant in error to modify the findings was sustained, and the report of the referee as modified confirmed, and judgment entered in favor of defendants in error.

The plaintiff in error seems to concede the right of the district court to modify the rulings and findings of a referee, but insists that the court erred in modifying it in certain particulars, which are stated in his brief. Without stopping to enquire as to the power of the court to make the modifications complained of, our first attention will be given to the enquiry presented. The plaintiff in error insists that the court erred in so modifying the report of the referee as to give the defendants in error judgment for the value of three piano trucks, which was found by the referee to be forty dollars. Upon this part of the case the referee reported specially as follows: "That the two piano trucks described in plaintiff's mortgage were prior to the bringing of this action, in the hands of the defendant, and while in his hands plaintiffs demanded possession of the goods under the mortgage, but that prior to the commencement of this suit the piano trucks were returned to E. A. Van Meter, judgment debtor, and plaintiff's mortgagor. That the value of the trucks was $ 40,00." This special finding being in the nature of a special verdict, it was competent for the court to render judgment thereon, in conformity with section 294 of the civil code, which is as follows: "When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly." Upon this particular feature of the case the special finding of the referee had the effect of a special verdict. Sec. 300, Id. Under this finding, the property not having been taken, it was competent for the action to proceed as one for damages. Sec. 193, Id. In this the court did not err.

It is next insisted that the court erred in so modifying the report as to admit in evidence certain depositions and records which tended to prove that the property in dispute was exempt to the mortgagors at the time of the execution of the mortgage to the payee of the promissory notes secured by the mortgage, as there was no issue of that kind before the court. While we think it must be conceded that the referee erred in rejecting this evidence, yet his findings of fact were against the plaintiff in error, and those findings were supported by the evidence which he did admit, therefore we fail to see where the plaintiff in error could be prejudiced by the action of the court in that behalf. If the property was exempt from execution it was no affair of the creditors as to what disposition Van Meter made of it. He could keep it or sell it as he might prefer. He could transfer it to his wife, as in this case, either by sale or gift, and her title would be good. If she had a good title she could mortgage it, and her title would inure to the benefit of the mortgagee. Anderson v. Odell, 51 Mich. 492, 16 N.W. 870. Boggs v. Thompson, 13 Neb. 403, 14 N.W. 393. Derby v. Weyrich, 8 Neb. 174.

It is claimed that "the right of a debtor to hold certain...