J. Thompson & Sons Manufacturing Company v. Nicholls

• Decision Date: 22 September 1897
• Docket Number: 7410
• Citation: 72 N.W. 217,52 Neb. 312
• Parties: J. THOMPSON & SONS MANUFACTURING COMPANY v. W. D. NICHOLLS ET AL
• Court: Nebraska Supreme Court

72 N.W. 217

52 Neb. 312

J. THOMPSON & SONS MANUFACTURING COMPANY v. W. D. NICHOLLS ET AL

No. 7410

Supreme Court of Nebraska

September 22, 1897

ERROR from the district court of Gage county. Tried below before BUSH, J. Reversed.

REVERSED AND REMANDED.

George Arthur Murphy, for plaintiff in error.

E. O Kretsinger, Griggs, Rinaker & Bibb, Alfred Hazlett, and S.D Killen, contra.

RAGAN C. HARRISON, J., not sitting.

OPINION

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 defendants wrongfully detain 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. First Nat. Bank of Tobias, 51 Neb. 557, 71 N.W. 304; Bolin v. Fines, 51 Neb. 650; Camp v. Pollock, 45 Neb. 771, 64 N.W. 231.) In all these 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 mortgagee 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 replevied 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 the Code of Civil Procedure is as follows: "The court may, either before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or,...