Kroll v. Ernst

• Decision Date: 13 April 1892
• Citation: 51 N.W. 1032,34 Neb. 482
• Parties: CARLOS KROLL v. FRED ERNST
• Court: Nebraska Supreme Court

51 N.W. 1032

34 Neb. 482

CARLOS KROLL v. FRED ERNST

Supreme Court of Nebraska

April 13, 1892

ERROR to the district court for Adams county. Tried below before GASLIN, J.

AFFIRMED.

Bowen Hoeppner & Bowen, for plaintiff in error, cited Marseilles Mfg. Co. v. Morgan, 12 Neb. 68.

John M Ragan, contra.

OPINION

NORVAL, J.

This was an action of replevin commenced in the court below bye Carlos Kroll, to recover the possession of eighteen head of cattle. The defendant justified his right to possession under the provisions of the statute providing for an agister's lien. The jury found that the defendant had a special ownership or interest in the property to the amount of $ 117, and assessed to him nominal damages for the wrongful taking.

It is admitted that, at the time the suit was brought, plaintiff was the general owner of the cattle. In the spring of 1889 he delivered them to the defendant to herd for the season, at a stipulated price per head. The herd bill has never been paid. Under the statute one who feeds and cares for live stock under a contract with the owner has an agister's lien upon such stock for their keeping, and it is declared to be unlawful for the owner to obtain possession of the same, by replevin or other legal process, until he has paid or tendered the amount due for their feed and care. But it is contended that the defendant voluntarily parted with the possession of the stock and thereby relinquished his lien. If the premises were true, the conclusion drawn therefrom would be irresistible. The voluntary abandonment of the custody of the property by the agister, divests the lien.

This brings us to the consideration of the principal question in the case, and that is, does the evidence show that the possession of the cattle was ever surrendered by the defendant. It appears that on the 16th or 17th of October, 1889, plaintiff went to the farm of the defendant for the purpose of taking home his stock, and finding the defendant absent, plaintiff started with the cattle, defendant's wife, son, and hired man helping drive them out into the highway. Very soon afterwards defendant returned home, and finding the cattle gone, he with his son and hired man, started after them, overtaking them about a half a mile from defendant's place. Plaintiff having refused to pay the herd bill when requested, defendant took possession of the cattle, and drove them to his farm, where they remained...