Jordan v. Allen
| Decision Date | 26 June 1918 |
| Docket Number | No. 20080.,20080. |
| Citation | 102 Neb. 639,168 N.W. 594 |
| Parties | JORDAN v. ALLEN ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Error cannot be predicated upon a direction to return the only verdict that the record will sustain.
“A defendant in replevin who unsuccessfully seeks to establish a right of possession in himself is liable for costs, although no demand was pleaded or proved.” Tilden v. Stilson, 49 Neb. 382, 68 N. W. 478.
Appeal from District Court, Sheridan County; Westover, Judge.
Replevin by John C. Jordan against John Allen, in which Charles A. Hetzel intervened and filed a cross-petition. Judgment for plaintiff upon a directed verdict, and the intervener as defendant appeals. Affirmed.
E. D. & F. A. Crites, of Chadron, for appellant.
C. Patterson, of Rushville, and Lloyd Jordan, of Gordon, for appellee.
This is a replevin action commenced by John C. Jordan in the district court for Sheridan county to obtain possession of 800 bushels of wheat that was raised by John Allen on land owned by Charles A. Hetzel, defendant. Hetzel, who intervened, filed an answer and cross-petition asserting ownership. At the close of the testimony the court directed a verdict for plaintiff for 750 bushels of the wheat. The grain having been sold, defendant recovered $42.80; that being the surplus that remained after plaintiff's claim and expenses were paid. Each party was required to pay his own costs. The intervener as defendant has appealed.
By the terms of an oral lease between Hetzel and Allen made in the fall of 1914, the crops were to be divided equally between them. Allen gave a mortgage to “The Fair,” a general merchandising concern at Gordon, on his half interest in 100 acres of growing wheat and some corn that was in shock on the farm, and also some live stock. Plaintiff purchased the note and mortgage in suit from “The Fair.” The instruments are both dated September 26, 1914, and the mortgage was recorded February 4, 1915. They were executed while Allen was living on Hetzel's land.
Hetzel's claim to the wheat in suit was based in part on an assignment from Allen to him, dated November 14, 1914, and acknowledged July 26, 1916. It was offered in evidence, but excluded on the ground that the question at issue “relates to the ownership and possession” at the time of the commencement of the suit, namely, November 26, 1915. The discrepancy between the dates that appears on the assignment is not explained. Hetzel harvested the wheat in 1915, and he maintains that Allen, having abandoned the premises, forfeited his claim to the crop, and that the mortgage was invalid on that ground as well as upon other grounds. Defendant also contends that the chattel mortgage in evidence is void for uncertainty of description. He resisted plaintiff's claim on both grounds. To support his argument respecting uncertainty of description, defendant cites Wattles v. Cobb, 60 Neb. 403, 83 N. W. 195, 83 Am. St. Rep. 537. But that case is not in point. There is an element here that was lacking in the Wattles Case. Hetzel recognized the mortgage in evidence as being a valid instrument both as to the corn and the wheat before plaintiff bought it. While defendant earnestly insisted that he had no talk with the assignee of the mortgage, he admitted that he sold the corn that is described in the mortgage, and upon demand by W. W. Mills, manager of “The Fair,” defendant paid to Mr. Mills half of the money that he received for the corn. This payment was made on November 17, 1914, the day after Allen who was then insolvent left the country...
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