Herman v. Kneipp

• Decision Date: 09 November 1899
• Docket Number: 9,001
• Citation: 80 N.W. 816,59 Neb. 208
• Parties: J. M. HERMAN ET AL. v. FRANK P. KNEIPP
• Court: Nebraska Supreme Court

80 N.W. 816

59 Neb. 208

J. M. HERMAN ET AL. v. FRANK P. KNEIPP

No. 9,001

Supreme Court of Nebraska

November 9, 1899

ERROR from the district court of Greeley county. Tried below before KENDALL, J. Reversed.

REVERSED AND REMANDED.

G. C. & E. E. Wright, for plaintiffs in error.

H. L Ganoe, contra.

OPINION

NORVAL, J.

This was an action of replevin by Frank P. Kneipp to recover possession of three horses, in which he claimed a special interest by virtue of a chattel mortgage given him by one Thomas Healey. The defendant, J. M. Herman, filed a separate answer, denying each and every allegation contained in the petition, except that the horses were in his possession alleging that no demand was made for the property prior to the institution of the action; and setting up an agistator's lien on the horses for their care and keeping, under and in pursuance of a contract with E. M. Healey, who claims to be their owner, and praying their return to him and that his lien as agistator be established. The defendant, J. J. Herman, answered, disclaiming any interest in the property in controversy. Plaintiff replied by a general denial. A trial to the court, without jury, resulted in a finding and judgment in favor of plaintiff, and against the defendants. The latter have prosecuted error proceeding.

It is insisted by counsel for plaintiff below that the bill of exceptions is unauthenticated, and hence the same can not be considered. If the premises assumed by counsel were true, the conclusion drawn by him therefrom would be irresistible, for it is the doctrine of this court, recognized and applied in numerous decisions, that a bill of exceptions not authenticated as required by statute will be disregarded in the appellate court. But this record does not sustain the contention of counsel, and he evidently must have overlooked the certificate of the clerk of the district court attached to the transcript herein, in which is stated "that the foregoing is a true and perfect transcript of the record in the above-entitled cause, except the bill of exceptions, which original bill is hereto attached." This constituted a sufficient authentication of the bill of exceptions.

The horses were in the possession of J. M. Herman when replevied and it is insisted that there can be no recovery because no demand for the property was made upon him before the action was commenced. Whether or not a demand was made is wholly immaterial, since said defendant in his answer pleaded a special interest in, and right to the possession of, the horses in himself, and prayed for their return to him. It is, therefore, evident that had a demand for the property been made...