J. Thompson & Sons' Manuf'g Co. v. Nicholls

• Decision Date: 22 September 1897
• Citation: 52 Neb. 312,72 N.W. 217
• Court: Nebraska Supreme Court
• Parties: J. THOMPSON & SONS' MANUF'G CO. v. NICHOLLS ET AL.

52 Neb. 312

72 N.W. 217

J. THOMPSON & SONS' MANUF'G CO.

v.NICHOLLS ET AL.

Supreme Court of Nebraska.

Sept. 22, 1897.

Syllabus by the Court.

1. A petition in replevin by a mortgagee of chattels, alleging that the plaintiff has a special interest in the property by virtue of a chattel mortgage, and that he is entitled to the immediate possession of such property, without alleging the facts in reference to his special ownership, and the facts showing his right to the possession of the mortgaged property, does not state a cause of action.

2. The statutes neither command nor authorize the supreme court to amend the record of the trial court in a case brought here for review.

Error to district court, Gage county; Bush, Judge.

Replevin by W. D. Nicholls and others against J. Thompson & Sons' Manufacturing Company. There was a judgment for plaintiffs, and defendant brings error. Reversed.Geo. A. Murphy, for plaintiff in error.

E. O. Kretsinger, Griggs, Rinaker & Bibb, Alfred Hazlett, and S. D. Killen, for defendants in error.

RAGAN, C.

This is an error proceeding to review a judgment of the district court of Gage county. The action was brought originally in said district court, and was one in replevin. Both the petition and affidavit in replevin filed in the court below alleged “that they [the plaintiffs] have a special interest by virtue of chattel mortgages made to them by George Raymond in the following described goods and chattels; * * * that plaintiffs are entitled to the immediate possession of said goods, and that defendant wrongfully detains the same. * * *” The plaintiffs had a verdict and judgment.

1. It is evident that this petition does not state a cause of action, and consequently the pleadings do not support the judgment. See Raymond v. Miller, 50 Neb. 506, 70 N. W. 22;Hudelson v. Bank (Neb.) 71 N. W. 304; Bolin v. Fines, Id. 293; and Camp v. Pollock, 45 Neb. 771, 64 N. W. 231,--in all which cases it was distinctly ruled that a plaintiff in replevin claiming under a chattel mortgage must, in his petition, allege the existence of facts which show him entitled to possession of the mortgaged property. The petition in the case at bar does not allege what promise or obligation of the mortgagor or others the mortgage was given to secure; that the promise which the mortgage was given to secure the fulfillment of had been broken; nor does it allege the existence of any fact, or the occurrence of any event, which vested the mortgagees with the right to possession of the mortgaged property.

2. The plaintiffs below have filed a motion here for leave to amend the petition filed in the district court by setting out the facts showing their special interest in the mortgaged and replevined property, and the facts which show that they were entitled at the commencement of the suit to the possession of said property, all which said facts were proved upon the trial. Section 144 of...