Honaker v. Vesey

• Citation: 57 Neb. 413,77 N.W. 1100
• Parties: HONAKER v. VESEY ET UX.
• Decision Date: 19 January 1899
• Court: Supreme Court of Nebraska

57 Neb. 413

77 N.W. 1100

HONAKER

v.VESEY ET UX.

Supreme Court of Nebraska.

Jan. 19, 1899.

Syllabus by the Court.

1. It is proper for joint owners of chattel property to join in an action for the recovery of its possession.

2. To obtain a review of alleged error in the denial of the cross-examination, if the complaint is directed against a denial of answer to a single or separate question, the assignment must be specific.

3. Findings of a trial court based upon conflicting evidence, of which there is a sufficiency in their support, will not be disturbed in this court.

4. If the plaintiff in an action of replevin fails to give the undertaking required by law, and the property is returned to the defendant, the action may proceed as one for damages only; and, if the plaintiff prevails, his measure of damages is the market value of the property, and the lawful interest thereon. Baum Iron Co. v. Union Sav. Bank, 69 N. W. 939, 50 Neb. 387.

5. A mortgage in terms to secure the payment of a debt evidenced by a promissory note may be shown to be one of indemnity only.

6. An indemnity mortgage may not be foreclosed by the original mortgagee or an assignee after maturity until the damages have been suffered, against or for which the indemnity was sought to be provided.

Error to district court, Logan county; Neville, Judge.

Action by William L. Vesey and wife against J. C. Honaker. Judgment for plaintiffs. Defendant brings error. Affirmed on conditions.Wilcox & Halligan, for plaintiff in error.

Hoagland & Hoagland, for defendants in error.

HARRISON, C. J.

Possession of a number of different articles, principally household furniture, was taken for the plaintiff in error, his claim thereto arising under the provisions of a chattel mortgage. The defendants in error instituted this, in its inception a replevin action, to obtain possession of the property, but did not furnish the undertaking required by law, and the property was returned to the plaintiff in error, and the action proceeded as one for damages only. A trial to the court, a jury being waived, resulted in a judgment for the defendants in error.

In an error proceeding to this court it is complained for the plaintiff in error that the defendants in error were not joint owners of the property which was replevied, but were owners of separate and distinct portions or articles of it; hence could not join in the suit, and their doing so constituted a fatal misjoinder. If the facts had been as contended by counsel for plaintiff in error, there was the misjoinder. On the subject of the ownership of the property, a finding that the parties were not joint owners of the property would have been warranted by the evidence; but a contrary finding, or that they were joint owners, had sufficient of the evidence in its support. The latter was the one adopted and enforced by the trial court, and we will not disturb it, and must conclude that there was no misjoinder of parties.

It is also urged that the court erred in denying the plaintiff in error the right to cross-examine a witness on a stated subject. There was not an entire denial of such right, and the assignment of error is not specific enough to call for the examination of any single or separate denial of a question in cross-examination.

The findings and judgment were as follows: “The court finds that the right of property and right of possession of said property described in the replevin affidavit and petition of plaintiffs, when this action was commenced, was in the plaintiffs; that the value of said property was the sum of $124.55. The court also finds that the plaintiffs failed to give an undertaking as required by law, and said property was retained by the defendant. The court also finds that the plaintiffs have been damaged by reason of the wrongful taking of said property by defenda...