Kersenbrock v. Martin
| Decision Date | 06 February 1882 |
| Citation | 11 N.W. 462,12 Neb. 374 |
| Parties | HERMAN KERSENBROCK, PLAINTIFF IN ERROR, v. JOSEPH MARTIN, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Madison county. Tried below before BARNES, J.
It was an action in replevin commenced by the present plaintiff in error against the said defendant in error for the recovery of certain personal property. Plaintiff claimed title and right of possession by virtue of a certain chattel mortgage covering the property in question, executed by P. A. Sloan and Leopold Engler to the said plaintiff, Herman Kersenbrock on the 26th day of March, 1880, which mortgage was duly filed in the county clerk's office of Madison county, Nebraska. The plaintiff, by his agent, Ferdinand Brodfuehrer, at the town of Madison, in said county, on the 19th day of April 1880, took possession of said property by virtue of said mortgage, and while plaintiff so had possession of said property, the defendant, Joseph Martin, who was then sheriff of said Madison county, attached the same at the suit of Stubendorf & Company on a claim amounting to about $ 400.00 against said Sloan & Engler, and interposed as his defense in his answer in this action, that said mortgage was fraudulent as to creditors. The case was tried before BARNES, J. Verdict and judgment for defendant.
REVERSED AND REMANDED.
John G Higgins and Byron Millett, for plaintiff in error, cited Cropsey v. Averill, 8 Neb. 151. Gen. Stat., 713. Black v. Winterstein, 6 Neb. 224. Frey v. Drahos, 7 Neb. 194. Uhl v. Robison, 8 Neb. 272. Newton Wagon Co. v. Diers, 10 Neb. 285. Wells Law and Fact, sections 466--477. Maxwells Pl. and Pr., forms of verdict in replevin.
Robertson & Campbell, for defendant in error, cited White v. Webb, 15 Conn. 302. Hall v. Jenness, 6 Kan. 356. Phillipe v. Reitz, 16 Kan. 400. McCann v. McDonald, 7 Neb. 305. Armstrong v. Freeman, 9 Neb. 14. French v. Millard, 3 Ohio St. 53. Eisely v. Malchow, 9 Neb. 181.
This controversy is virtually between a mortgagee and certain of the creditors of P. A. Sloan and Leopold Engler. The defendant in error, who, as sheriff, seized the goods in controversy by virtue of an order of attachment, represents those creditors. There was a verdict and judgment for the defendant, and the plaintiff brings the case here by petition in error.
Of the several errors assigned, the ones chiefly relied on to obtain a reversal of the judgment relate to the judge's charge to the jury--the first, third, fourth, and sixth instructions given at the request of the defendant. These will be noticed in the above order.
By the first of these instructions the jury were told, in substance, that in case they found for the defendant the measure of his damages would be "the value of the property" replevied. Considering the attitude of the parties in respect to the goods this was very clearly error. As against the attachment debtors, the plaintiff, as mortgagee, was entitled to hold them. Before the levy of the attachment, the plaintiff, by his agent, with the assent of the mortgagors, had taken possession of all of the property, and was still holding it when seized by the defendant. His rights, therefore, were those of a mortgagee in possession, and even if, in consequence of fraud, they were found to be subject to those of these attachment creditors, he was entitled to all that remained after their just demands were satisfied. Those demands, as shown by the order of attachment, by which for the purposes of the replevin suit they are to be measured, were considerably less than the value of the property as shown by the evidence, and found by the jury. The recovery, therefore, should not have exceeded the amount called for by the writ. Black v. Winterstein, 6 Neb. 224. Frey v. Drahos, 7 Neb. 194.
The third instruction was in these words: "You can take into consideration all of the facts and circumstances shown by the evidence, and find from those facts and circumstances whether the plaintiff, or defendant, should, as matter of right...
To continue reading
Request your trial