Lathrope v. McBride

• Decision Date: 27 January 1891
• Citation: 47 N.W. 922,31 Neb. 289
• Parties: LATHROPE v. MCBRIDE.
• Court: Nebraska Supreme Court

31 Neb. 289

47 N.W. 922

LATHROPE

v.MCBRIDE.

Supreme Court of Nebraska.

Jan. 27, 1891.

Syllabus by the Court.

One L. brought an action of replevin against B. & C., and on the trial failed to appear, when judgment was rendered, by default, in favor of the defendants for a return of the property, or, in case a return could not be had, for the value thereof, being $85.89. A transcript of this judgment was thereupon filed in an adjoining county, in which L. had a homestead under the laws of the United States. Afterwards L. sought to obtain a loan upon his homestead by executing a mortgage thereon, but the person who furnished an abstract of title certified that the judgment was a lien on the homestead, and L., being unable to obtain a loan on such abstract, paid the judgment under protest, “and demands to have the same held pending action in error of Knox Co., Neb.” The judgment in Knox county was afterwards affirmed. In an action by L. against the clerk of the district court, to recover the money paid on the judgment, held, first, that the judgment was not a lien on the homestead; second, that the payment was voluntary, on a lawful debt, and could not be recovered from the clerk of the district court.

Error to district court, Holt county; KINKAID, Judge.H. M. Uttley, for plaintiff in error.

E. P. Weatherby, for defendant in error.

MAXWELL, J.

In December, 1886, the plaintiff began an action against George E. Cheney and John Benedict before a justice of the peace of Knox county, and on the trial the following proceedings were had, as appear from the transcript: “Dec. 23d, 1886, at 10 o'clock in the forenoon, case called; plaintiff failing to appear, and after waiting one hour, and having been called three times in open court, he is adjudged to be in default. Jury being waived by defendant, he proceeds to trial to the court, and after hearing evidence offered by the defendant, to-wit, No. 23 & 4, I find that the right of property, and right of possession of said property, when this action was commenced, was in the defendant, and I assess the value of said property at the sum of $85.89. It is therefore considered by me that the said defendant have a return of said property taken on said writ of replevin, or, in case a return of said property cannot be had, that he recover of said plaintiff the value thereof, assessed at $85.89, and costs of said suit.” The case was taken on error to the district court by the plaintiff, where, on the 23d day...