Hainer v. Lee
| Decision Date | 05 April 1882 |
| Citation | 11 N.W. 888,12 Neb. 452 |
| Parties | E. J. HAINER, PLAINTIFF IN ERROR, v. ISAAC T. LEE, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Hamilton county. Tried below before POST, J.
REVERSED AND REMANDED.
Austin J. Rittenhouse, for plaintiff in error.
J. S Miller and J. H. Smith, for defendant in error.
The defendant in error sued the plaintiff in error before a justice of the peace to recover a stove. The return of the officer on the writ of replevin showed that the property could not be found, and the case accordingly proceeded as one for damages only. Upon the trial the justice made no special finding, but rendered judgment for the plaintiff for $ 35.00 the value of said property, and ten dollars damages for the wrongful detention of the same, and costs. On appeal to the district court the verdict and judgment were for the plaintiff in the sum of $ 35.00. The defendant brings the cause to this court on error. The errors assigned are numerous, and will be stated and disposed of in their order.
1. That the court erred in overruling the motion filed by plaintiff in error to dismiss the appeal, on the ground that there was no judgment in the justice's court from which an appeal would lie.
By referring to the record we find that this was a motion to dismiss the cause, and not to dismiss the appeal. It is once recited in the journal entry as a motion to dismiss the appeal, but the motion itself as given in the record, as well as the recital in the motion for a new trial, show it to be a motion to dismiss the cause. Such being the case, whatever might have been the right of the plaintiff in error to dismiss his appeal--and as to that we express no opinion--the motion was correctly overruled.
2. The court erred in refusing to give the first instruction asked for by the plaintiff in error, which instruction is in words as follows: "If you find from the evidence that the defendant at the commencement of this action was not in the possession of, and had no control over, the stove, you will find for the defendant."
There is a conflict of authority on the point whether this action can be maintained where the defendant, once having the possession of the chattel, has parted with such possession and all control over it, before the suit is brought. While the weight of authority probably is to the contrary, yet, in order to defeat a recovery on that ground, the parting with possession must be real and bona fide, and not simulated or constructive.
In the case at bar the testimony of plaintiff in error, on his own behalf, on cross examination, was as follows:
Q. You purchased the stove, did you at the sale?
A. I had it purchased for me.
Q. It was for you the stove was bought?
A. Yes, sir.
Q. And it was delivered to you here?
A. Yes, sir.
Q. And you took it out to your farm?
A. Yes, sir.
Q. Your sister was living there, was she?
A. Not at the time I took it out.
Q. You left it there with your sister?
A. I told you about that. I had my arrangements with my mother and the family fixed to come out from Iowa. I owned the farm and was to fix it up for them. And part of the folks came out, I think in March, my brother and sister and her child, and shortly after they came I moved out a portion of the furniture, and among other things that stove, and turned it over to them. Mother came shortly after that, and I then took out the balance of the furniture.
Q. What time in March was this conversation that you had in my office? (meaning the office of the attorney for the plaintiff.)
A. I don't know. I should say early in March, I think three or four days after the stove had been moved out to the farm. It might possibly have been in February.
Q. Was the stove moved out to the farm before Lee made the demand of you for it?
A. Yes, sir.
Q. At the time he made the demand for the stove in the bank you had no possession or control over it, did you?
A. No, sir.
Q. Then why did you refuse Mr. Lee in the way you did? You say you had no control over the stove at that time. Did you not swear that his demand was refused?
A. Yes, sir, it was.
Q. Is it not a fact that during the conversation in my office at the same time you said you proposed to stand by the stove and defend it?
A. I don't think I did. I don't think that came up at all, but of course I should have done so if it was attempted to take away the stove. * * I don't think the word ownership or possession was mentioned, but that I had nothing to do with the stove; it was on the farm and sister was sick and I did not want any one to go and remove the stove under the circumstances, and for that reason I was willing to try the case in any court in the county, and give a bond to any amount to the plaintiff he might name.
"The purpose of instruction," says Proffatt (Trial by Jury, Sec. 311) "is to give to the jury a statement of the law applicable to the particular case, to declare what presumptions of law are applicable to the facts, and to declare the legal effect of certain evidence." An examination of the whole testimony in the case, particularly that of the plaintiff in error above set out, satisfies us that the law of the instruction prayed is not applicable to the particular case then before the court and jury, and that the same was properly refused.
4. The court erred in refusing to give the fourth instruction asked for by the plaintiff in error, which was as follows: "In case you find for the plaintiff, the measure of damages shall be the value of the stove and fixtures in question, with the addition of lawful interest on such value, from the date of the taking to the first day of the term of court." This instruction was correct, but to justify a reversal, for a refusal to give an instruction, such instruction should be correct in every particular.
5. The court erred in giving the second instruction asked for by the defendant in error, which...
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