Hudelson v. First National Bank of Tobias

• Decision Date: 18 May 1897
• Docket Number: 7280
• Citation: Hudelson v. First National Bank of Tobias, 71 N.W. 304, 51 Neb. 557 (Neb. 1897)
• Parties: JAPHTHA A. HUDELSON ET AL. v. FIRST NATIONAL BANK OF TOBIAS ET AL
• Court: Nebraska Supreme Court

71 N.W. 304

51 Neb. 557

JAPHTHA A. HUDELSON ET AL. v. FIRST NATIONAL BANK OF TOBIAS ET AL

No. 7280

Supreme Court of Nebraska

May 18, 1897

ERROR from the district court of Saline county. Tried below before HASTINGS, J. Reversed.

REVERSED AND REMANDED.

Hastings & McGintie and Willard E. Stewart, for plaintiffs in error.

Bartlett Baldrige & De Bord, F. I. Foss, and W. R. Matson, contra.

OPINION

HARRISON, J.

It appears that on July 18, 1893, there was being, and had been for some time prior thereto, conducted a lumber yard and coal business in Tobias, Nebraska, under the name and style of H C. Larsen & Co. Whether owned and operated by C. W. Lyman and H. C. Larsen as partners, or the individual property of C. W. Lyman, and H. C. Larsen was the manager of the business without ownership or other interest in the business or property connected therewith, was one of the material contested issues of the trial. On July 18, 1893, notes and chattel mortgages evidencing the indebtedness of H. C. Larsen & Co. to the defendants in error, respectively, were executed to them by H. C. Larsen in the name of H. C. Larsen & Co., and duly delivered. The property described in these chattel mortgages included the stock of lumber and coal, all office fixtures, etc., of the business of H. C. Larsen & Co., at Tobias. At the same time, all promissory notes and book accounts of various parties in favor of H. C. Larsen & Co. were assigned to defendants in error, and it was claimed that immediate possession of the mortgaged chattels was surrendered by Larsen and assumed by or for defendants in error. This last was disputed by the plaintiffs in error and became one of the issuable points in the controversy. On July 23, 1893, a writ of attachment issued in a suit, in which Japhtha A. Hudelson was plaintiff and C. W. Lyman defendant, was levied on the mortgaged property, and possession of it taken by the sheriff, as the individual property of C. W. Lyman, and on August 17, 1893, it was replevied at the instance of defendants in error, by virtue of the writ of replevin issued in the present suit. Defendants in error were successful in a trial of the issues, and the defeated parties ask of this court a review of the proceedings in the district court.

It is urged that the affidavit in replevin is fatally defective, in that it is claimed there was a failure to state in it that plaintiffs were entitled to the immediate possession of the property described; also, that the wrongful detention of the property by the defendants was not alleged, nor was it set forth that the property was not taken in execution on any order or judgment, etc. It is required by section 182 of the Code of Civil Procedure, among other things, that in an affidavit made and filed to obtain an order of delivery to issue in an action of replevin, there shall appear statements that plaintiff is entitled to the immediate possession of the property; "that the property is wrongfully detained by the defendant; that it was not taken in execution on any order or judgment against said plaintiff, or for the payment of any fine, tax, or amercement assessed against him, or by virtue of an order of delivery issued under this chapter, or any other mesne or final process issued against him." The affidavit in this case contained statements by which it was sought to establish the special ownership of the defendants in error of the property to be taken under the writ for which application was made, and further, "that said plaintiffs are entitled to possession of said property; that it was not taken in execution, on any judgment or order against said plaintiff, for the payment of any fine, tax, or amercement assessed against them, or by virtue of an order of delivery in chapter providing for the replevin of property, or any other mesne or final process issued against the plaintiffs." In the portion of the foregoing which refers to the right to possession, the word "immediate" was not used, but the statement was made in the present tense, and claimed the right to possession then, at the time, which we think was sufficient. Its meaning was that right to instant possession existed. In the clause in reference to the property not being taken in execution, etc., which we have quoted from the affidavit, the word "or," as used in the section of the Code of Civil Procedure to which we have hereinbefore directed attention, between the words "plaintiff" and "for" was omitted, and it is claimed that this changed the sense so that it did not express what it should to fulfill the requirements of the Code. If read without a pause after the word "plaintiff," it is subject to the criticism made, but if read with a pause after such word, it conveys the proper idea; and we think we must adopt the latter method as the more natural and less strained, and as consonant to the rule of the Code in regard to liberal reading and construction of pleadings, and to avoid unnecessary technicality. It will no doubt have been noticed that there was an entire absence of any statement, either in the words of the Code or in their equivalents, or of facts which showed the wrongful, or any, detention of the property by the plaintiffs in error. This was a fatal defect. An allegation of unlawful detention is essential. (Cobbey, Replevin, sec. 542.) But this was an action in district court, and the petition, duly verified and on file, contained the statement of the wrongful detention of the property, and this was sufficient to give jurisdiction to issue the writ, and it was not void but voidable; and had the writ and affidavit been attacked by proper plea, the court might on application have allowed the affidavit to be amended. (Commercial State Bank v. Ketcham, 46 Neb. 568, 65 N.W. 201; Lewis v. Connolly, 29 Neb. 222, 45 N.W. 622.) No objections were made to either the form or substance of the affidavit in the district court, nor was the validity of the writ of replevin questioned, so far as the record presented here discloses. By appearing and answering to the merits and going to trial without making such objections, the parties waived defects in the affidavit.

It is claimed that the petition herein was insufficient, that it did not state a cause of action, for the reason that it was not alleged that the defendants in error were entitled to the immediate possession of the property, neither as a conclusion nor by facts pleaded, from which such right appeared or could even be inferred. The petition was as follows:

"The plaintiffs, the First National Bank of Tobias, Nebraska, a corporation duly organized and existing under and by virtue of the laws of the state of Nebraska, the K. S. Newcomb Lumber Company, and Stanley Larsen complain of the defendants and say as a

"First Cause of Action.--That the plaintiffs, the First National Bank of Tobias, Nebraska, and K. S. Newcomb Lumber Company, and Stanley Larsen, have a special ownership in the following described goods and chattels, to-wit: All the stock of lumber, lime, timber, shingles, lath, sash, doors, moulding, cement, and merchandise of any kind and nature whatever in the lumber yard of H. C. Larsen & Co., of Tobias, Nebraska, on lots 14, 15, 16, 17, 18, and 19, in block 5, First Addition to Castor; also all office furniture and improvements on said lots; also coal house and coal on the Nebraska and Colorado Railway right of way at Castor, known as Tobias, in Saline county, Nebraska.

"And the said plaintiff, the First National Bank of Tobias, Nebraska, says that on the 18th day of July, 1893, H. C. Larsen & Co., then the owners of said property, executed their promissory note to said plaintiffs in the words and figures following, to-wit:

"'$ 1,696.75. TOBIAS, NEB., July 18, 1893.

On demand, after date, I or we promise to pay to the order of the First National Bank of Tobias, Nebraska, sixteen hundred ninety-six and 75-100 dollars, for value received, at ten per cent per annum from maturity until paid. Interest payable annually. All sureties and endorsers on this note hereby waive protest, demand, notice of protest, extension of time given to the maker, or any of them, and guaranty payment of the same.

"'P O. Tobias. No. 11719. H. C. LARSEN & CO.'

"3. To secure the payment of said note they executed and delivered to said plaintiff a chattel mortgage upon the above described property, a copy of which chattel mortgage is hereto attached and marked Exhibit 'A.'

"4. Second Cause of Action.--And the plaintiff the S. K. Newcomb Lumber Company complain of the defendants for that on the 18th day of July, 1893, H. C. Larsen & Co. made and delivered to said plaintiff their promissory note, in writing, in the words and figures following:

"'$ 1,128.60. TOBIAS, NEB., July 18, 1893.

"'On demand, after date, for value received, I or we promise to pay to the order of S. K. Newcomb Lumber Co. eleven hundred twenty-eight and 60-100 dollars, at the First National Bank of Tobias, with interest at ten per cent per annum from date until paid.

"'H. C. LARSEN & CO.'

"5. To secure the payment of said note, the said H. C. Larsen & Co. made and delivered to said plaintiff a chattel mortgage on the goods and chattels described above in first cause of action, copy of which is hereto attached and marked Exhibit 'B.'

"6. Third Cause of Action.--The plaintiff Stanley Larsen complains of the defendants and says that on the 18th day of July, 1893, H. C. Larsen & Co. made and delivered to him their promissory note, in writing, in the words and figures following, to-wit:

"'$ 600. TOBIAS, NEB., July 18, 1893.

"'On demand, after date, for value received, I or we promise to pay to the order of Stanley Larsen six hundred dollars, at the First National Bank of Tobias, with interest at ten per cent per...