Lee v. Hastings

• Decision Date: 30 December 1882
• Citation: 13 Neb. 508,14 N.W. 476
• Parties: LEE v. HASTINGS.
• Court: Nebraska Supreme Court

13 Neb. 508

14 N.W. 476

LEE

v.HASTINGS.

Supreme Court of Nebraska.

Filed December 30, 1882.

Error from Saline county.

J. R. Webster, for plaintiff.

Hastings & McGintie, for defendant.

MAXWELL, J.

This is an action upon an undertaking in replevin, in an action commenced before a justice of the peace. The undertaking is dated May 8, 1880, and was given in an action wherein one John C. McDonald was plaintiff and Thomas B. Parker defendant; Lee and Hitchcock signing the same as sureties. As the value of the property exceeded $100, the cause was certified to the district court, where a stipulation was entered into between the attorneys for McDonald and Parker as follows:

“ John C. D. McDonald v. Thomas B. Parker. (Stipulation.)

It is hereby stipulated and agreed that at the commencement of this action the interest of the said defendant, Thomas B. Parker, in the property mentioned and described in plaintiff's petition, was $157.50, and that the said property was of the value of $200; that said property cannot be returned; and that said defendant recover of and from said plaintiff the sum of $157.50 and costs.

M. B. C. TRUE, for Plaintiff.

HASTINGS & MCGINTIE, Attorneys for Defendant.”

Judgment was thereupon rendered on the stipulation against McDonald and in favor of Parker for the sum of $157.50 and costs, and execution was issued thereon, which was returned unsatisfied. Judgment is prayed for $157.50 and costs.

To the petition stating the above facts the defendants below (plaintiffs in error) answered in substance that the above stipulation was made in a cause to which they were not parties, and without their knowledge or assent, and that the property at the time the stipulation was entered into was in possession of McDonald in the town of Wilbur, and so continued for a long time thereafter, and was then in good condition and capable of being returned, which said attorneys well knew. Second, that in the settlement of the terms of stipulation taken between Parker and McDonald, an unsecured debt of $44, owing by McDonald to Parker, was included in the stipulation and judgment rendered thereon, although that liability did not grow out of the action in replevin. Third, Parker's interest in said mortgaged property was that of mortgagee under a chattel mortgage, dated May 27, 1879, to secure certain promissory notes for the sum of $200; that said mortgage was duly filed for record, and at the date of the stipulation was a first lien on the mortgaged property; that on the fifteenth day of April, 1881, Parker, by his attorney, released said mortgage and thereby defrauded the defendants of the right to be subrogated to the lien of said Parker to the property. A demurrer to each count of the answer was sustained, and judgment rendered against the plaintiffs in error for the sum of $182.

The first question presented is as to the form of judgment in replevin.

Section 190 of the Code (Comp. St. 553,) provides that “if the property has been delivered to the plaintiff, and judgment be rendered against him on demurrer, or if he otherwise fail to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, impanel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury shall be satisfied that said property was the property of the defendant at the commencement of the action, or if they shall find that the defendant was entitled to the possession only of the same at such time, then, and in either case, they shall assess such damages for the defendant as are right and proper; for which, with costs of suit, the court shall render judgment for the defendant.”

...