Kuchar v. Bernstrauch, 39298
| Decision Date | 05 July 1974 |
| Docket Number | No. 39298,39298 |
| Parties | Willis KUCHAR, Appellee, v. Henry BERNSTRAUCH, d/b/a Bernstrauch Wrecker Service, Appellant. |
| Court | Nebraska Supreme Court |
Vincent J. Kirby, Norfolk, for appellant.
Mueting & DeLay, Norfolk, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.
This is a replevin action for the recovery of possession of an automobile and damages for its wrongful detention. The case was originally filed in the county court which found for the defendant and dismissed the action. Upon appeal to the District Court, that court found generally for the plaintiff as to the right of possession and damages and remanded the cause to the county court for determination of the amount of damages. The defendant has appealed from the judgment of the District Court.
Plaintiff's automobile was seized and impounded by the State Patrol on January 1, 1973, on suspicion that it was being used to transport marijuana. The officers placed the automobile in storage at the defendant's fenced lot. No proceeding for condemnation and forfeiture of the car under section 28--4,135, R.S.Supp., 1972, was ever filed in the District Court. There was apparently a criminal case filed in the county court of Madison County against one of the occupants of the car, entitled State of Nebraska v. LuAnn Kuchar. There is no showing as to any disposition of that case. No showing has ever been made in any court that any controlled substance was ever found in the plaintiff's car.
The plaintiff here made application in the case of State of Nebraska v. LuAnn Kuchar in the county court of Madison County to receive possession and custody of his automobile from the State of Nebraska pursuant to section 28--4,135, R.S.Supp., 1972. It was stipulated and agreed at the hearing that the plaintiff was the owner of record of the automobile, and that he had no knowledge that such automobile was allegedly being used in violation of any provision of the Controlled Substances Act. On March 1, 1973, the county court entered its order and adjudged and decreed 'that possession and custody of said automobile should be and hereby is placed in Willis Kuchar.' The county court made no provision in the order for payment of storage charges by the State as it might have done.
The plaintiff presented the court order for possession of the car to the defendant on March 1, 1973. The defendant refused to release the automobile until the plaintiff paid the storage costs. The plaintiff then brought this action in replevin to recover possession of the car and damages for its wrongful detention.
The defendant's theory is that he had a lien on the automobile for the storage under section 28--4,135, R.S.Supp., 1972, which provides in part: 'When a decree of condemnation is entered against any conveyance, court costs and fees and storage...
To continue reading
Request your trial
-
Musgrove v. Hickory Inn, Inc.
...Graham v. Worthington, 259 Iowa 845, 146 N.W.2d 626 (1966); Coe v. Ware, 271 Mass. 570, 171 N.E. 732 (1930); Kuchar v. Bernstrauch, 192 Neb. 225, 219 N.W.2d 764 (1974); Russell v. Downing, 114 N.H. 837, 330 A.2d 454 (1974); Jones v. Archibald, 45 A.D.2d 532, 360 N.Y.S.2d 119 (1974); Lawlor ......
-
Morfeld v. Bernstrauch, 82-619
...for his unlawful act in seizing the car. Defendant has personal knowledge as to the answer to this question. In Kuchar v. Bernstrauch, 192 Neb. 225, 219 N.W.2d 764 (1974), this court considered a replevin action in which the plaintiff's car had been seized and impounded by the State Patrol ......
-
Edwin Bender and Sons v. Ericson Livestock Com'n Co., Inc.
...agent is personally liable to third persons for [the agent's] misfeasances and positive wrongs....' " (Quoting from Kuchar v. Bernstrauch, 192 Neb. 225, 219 N.W.2d 764 (1974).) Bender's evidence showed that (1) Ericson represented the heifers to be open, a material fact inducing Bender's ev......