Hale v. Wigton

• Citation: 29 N.W. 177,20 Neb. 83
• Parties: D. A. HALE, PLAINTIFF IN ERROR, v. F. P. WIGTON, DEFENDANT IN ERROR
• Decision Date: 08 September 1886
• Court: Supreme Court of Nebraska

29 N.W. 177

20 Neb. 83

D. A. HALE, PLAINTIFF IN ERROR, v. F. P. WIGTON, DEFENDANT IN ERROR

Supreme Court of Nebraska

September 8, 1886

ERROR to the district court for Madison county. Tried below before CRAWFORD, J.

REVERSED AND REMANDED.

N. A Rainbolt, for plaintiff in error.

Wigton & Whitham, for defendant in error.

COBB J. REESE, J. concurs. MAXWELL, CH. J., dissenting.

OPINION

COBB J.

It appears from the record in this case that the action in the district court was replevin, brought by the plaintiff in error as plaintiff against the defendant in error as defendant, for the recovery of the possession of a horse. A trial was had to the court, which found for the defendant: "That at the commencement of this action the defendant had a special property in the horse in controversy and was entitled to the possession of the same. The court further finds the value of such property to be $ 68, and the value of the use of the same since the commencement of this action to be $ 70," and after overruling a motion for a new trial and one in arrest of judgment, adjudged: "That the defendant have a return of the property taken on said writ of replevin, or in case a return of said property cannot be had, that he recover of said plaintiff the value of defendant's special property therein assessed at $ 68, and also, and in either case, that he have and recover of the plaintiff his damages for withholding the same, assessed at $ 70, and costs," etc.

It further appears that after the trial and the taking down of the testimony by the official reporter of the court, his notes of such testimony were lost and could not be found, and that thereupon the parties, plaintiff and defendant respectively, stipulated as to the facts and evidence in the case, which stipulation was certified by the judge as the bill of exceptions in the case, and is substantially as follows:

"George Mather, one of the makers of said note and mortgage, set out in the stipulation and admitted to be genuine, is sole principal on said note, and Samuel Mather and Leroy C. Mather are sureties only on said note for said George Mather. Said mortgage and note, after said note becomes due, were placed in the hands of Searles & Kelley, attorneys, by the authority of the owner of said note and mortgage, for collection and foreclosure. Searles & Kelley thereupon placed the said mortgage in the hands of Joseph Martin, with instructions to said Martin to take the property therein named and do all things necessary in the foreclosure of said mortgage. Immediately thereafter said Martin by virtue of said mortgage took the horse in controversy and proceeded to advertise the same for sale under the mortgage; in the mean time caring for and feeding said horse in his livery stable.

"Before the day fixed for the sale of said horse under said mortgage, and while the said horse was in possession of and being fed and cared for by said Martin, said Samuel Mather, as surety on said note for said George Mather, paid to said Searles & Kelley the full amount demanded by them on said note and mortgage, and said note, endorsed by them in blank by D. Smith the payee and mortgagee, was then delivered to said Samuel Mather by said Searles & Kelley, and the mortgage assigned to said Samuel Mather. Said Martin was then instructed by said Searles & Kelley to proceed no further with the foreclosure of said mortgage. Samuel Mather then, and immediately after payment of said note as above set forth, demanded the possession of said horse from said Martin, but Martin refused to deliver said horse to said Samuel Mather until his charges for taking, keeping, and caring for said horse were paid. This occurred October 12, 1882.

"On or about December 2, 1882, said Martin, not having been paid his charges for taking, feeding, and caring for said horse, issued a notice (set out in said stipulation) addressed to Searles & Kelley, A. P. Pilger (?), Samuel Mather, and D. Smith, setting out the nature of his charges and accruing charges for keeping, feeding, and caring for the said horse, demanding such payment from them, and notifying them that unless the same should be paid within five days from the date of the service of said notice upon them, that he would proceed to sell said horse at public auction to satisfy said claim," etc.

There also appears in the stipulation a copy or exhibit of a notice of a public sale of said horse by said Joseph Mather to satisfy his claim for keeping, feeding, and caring for said horse, and in which it is recited that the said claim then remained unpaid, and that payment thereof had been demanded and refused. Said notice bears date the 3d day of December, 1882, and by its terms the said sale was to take place on the 19th day of December, 1882, at 10 o'clock A.M., at the barn of said Joseph Mather, at Madison, Madison county, which notice was posted in five public places in the village of Madison, Madison county, for three weeks prior to the day of sale mentioned therein, and was published prior to the time of said sale in the Elkhorn Valley News, a newspaper printed in said county and of general circulation. It also appears that, pursuant to said notice, and at the time and place therein mentioned, the said Martin offered said horse for sale at public vendue, and sold said horse to the plaintiff and delivered the possession thereof to him. It further appears that said Samuel Mather did not appear at said sale nor forbid the same.

It further appears from said stipulation that the assignment or transfer executed by the said Samuel Mather, a copy of which is attached thereto, is genuine. By said assignment the said Samuel Mather, under date of the 13th January, 1883, sold and assigned to the defendant all the claim and demand which he, the said Samuel Mather, had against George Mather by reason of him, the said Samuel Mather, having paid as surety the note hereinbefore mentioned, describing the same, together with all the rights and privileges to which he, the said Samuel Mather, had been subrogated by reason of such payments; together with all his rights and privileges in and concerning the chattel mortgage and the property thereby mortgaged, etc. The said stipulation contains the following further clauses: "It is further agreed that neither Samuel Mather or the defendant have ever been repaid the money paid by Samuel Mather on said note and mortgage."

"On the 20th day of April, 1883, defendant, by his agent, went to the farm of said plaintiff, who had continued in possession of said horse by virtue of said sale and delivery by said Martin to plaintiff, and took said horse from plaintiff's premises peaceably, but without plaintiff's knowledge or consent, plaintiff then not being present, and said farm then being in the charge of plaintiff's hired hand, who had been instructed by plaintiff to let no one have the horse. Defendant took said horse at said time by virtue of said assignment and chattel mortgage. * * *

"Defendant retained possession of said horse until the 24th day of April, 1883, when plaintiff, by virtue of this action, took possession of the same," etc.

"No tender of any sum was ever made to Joseph Martin or to plaintiff for the care, keeping, and feeding of said property, and no demand for the possession of said property was ever made upon plaintiff unless the facts herein set forth constitute such a demand.

* * * The value of said horse is $ 68, and the value of the use of the same during the time it has been in possession of plaintiff by virtue of this action is "

It was also stipulated that the court should fix the value of the use of said horse or damages, for its detention, in case it should find for the defendant from the evidence taken on the trial in the hearing of the court, the record of which had been lost.

It appears from the record, that upon the conclusion of the trial, and before the rendition of the judgment by the district court, the plaintiff applied to the court for permission to amend his petition, which was refused, and such order of the court is made a point of error by the plaintiff in his petition in error. This point comes first in order and will be disposed of.

In the case of Mills v. Miller, 3 Neb. 87, this court says "While the entire subject of amendments is in the discretion of the court before which the case is tried, yet it is a legal discretion, and if it should be made to appear to a reviewing court that the amendment sought to be made, of any pleading, process, or proceeding, is in furtherance of justice, it will be held to be error to refuse such amendment." I do not doubt the correctness of the above. To apply it to the case at bar: If the plaintiff was deprived of the benefit of any principle of law or the application of any item of evidence to which he would have been entitled, had his petition been as he proposed to make it, and which principle of law or item of evidence could, in the opinion of the court, possibly have led to a judgment in favor of the plaintiff in error, the judgment against him ought to be reversed. But was the amendment sought necessary in order to enable the plaintiff to present his entire case? I think not. The plaintiff in his brief says: "We do not now, nor did we at the trial of this cause, consider it necessary to file this amended petition in order to entitle plaintiff to recover, even though the facts proved establish only a special property in the horse in controversy. But if the view held by the district court during the progress of the trial, that 'under the facts proved, plaintiff's claim was but a special property in the horse, and the same not being plead he could not recover,' is correct, then it was error to refuse to allow the amended petition to be filed." ...