Lewis v. Connolly

• Citation: 45 N.W. 622,29 Neb. 222
• Parties: ALFRED LEWIS v. THOMAS CONNOLLY
• Decision Date: 26 March 1890
• Court: Supreme Court of Nebraska

45 N.W. 622

29 Neb. 222

ALFRED LEWIS v. THOMAS CONNOLLY

Supreme Court of Nebraska

March 26, 1890

ERROR to the district court for Cherry county. Tried below before NORRIS, J.

REVERSED AND REMANDED.

M. F Harrington, for plaintiff in error, cited: Wells, Replevin sec. 651.

J Wesley Tucker, contra, cited: Bradwell v. Stubbert, 17 Neb. 488; Gurney v. Gurney, 38 Ohio St. 658; Wells, Replevin, secs. 113, 115, 654; Sutro v. Hoile, 2 Neb. 191; Uhl v. Rau, 13 Id., 357; Scheble v. Jordan, 1 Pac. Rep., 121; Singer Mfg. Co. v. Sammons, 49 Wis. 316; Seeley v. Garey, 5 A. 666.

OPINION

MAXWELL, J.

This is an action of replevin brought by the defendant in error against the plaintiff in error, who is coroner of Cherry county. It appears from the record that one James Connolly had been engaged in the mercantile business in Cherry county and was indebted to one John J. McCofferty in a considerable amount, and being so indebted he sold, or at least professed to sell, all his stock and book accounts to his father, the defendant in error. McCofferty thereupon caused an attachment to be issued and levied on said goods as the property of James Connolly, whereupon the defendant in error regained the possession of the same by replevin. On the trial of the cause the jury returned a verdict in favor of the defendant in error, finding the right of property and the right of possession thereof in his favor, and a motion for a new trial having been overruled judgment was entered on the verdict.

The first objection of the plaintiff in error is, that there was no affidavit for replevin. A large number of affidavits were filed in this case to show that an affidavit as required by the statute had been filed, but was lost. Other affidavits and evidence in the case, however, show pretty conclusively that no such affidavit was filed, and the defendant in error contends in his brief that the petition and oath thereto contain all that is necessary.

The petition and verification thereof are as follows:

"The above named plaintiff complains of the above named defendant, and for cause of complaint and action says: That he is the owner of and entitled to the immediate possession of the following described goods, wares, merchandise and chattels, now being in said county of Cherry, and thus particularly described, to-wit, of the value of $ 5,903.23; that the said defendant wrongfully and unlawfully detained the said goods and chattels from the possession of the said plaintiff, and has detained the same as aforesaid for the space of three days, to plaintiff's damage in the sum of $ 500; that said goods were not taken on execution on any order or judgment against said plaintiff, or for the payment of any tax, fine, or amercement assessed against him, or by virtue of any order of delivery issued under the chapter of the Code of Civil Procedure providing for the replevin of property, or on any other mesne or final process issued against the said plaintiff.

"Wherefore the said plaintiff prays judgment against the said defendant, that he, the said defendant, do return to the said plaintiff the said goods and chattels so unlawfully detained, and for the said sum of $ 500, his damages, so as aforesaid sustained by reason of said unlawful detention, or for said sum of $ 5,903.23, the value of said property, with damages as aforesaid, in case it shall be found that a return thereof cannot be had.

"THE STATE OF NEBRASKA, CHERRY COUNTY, SS.

"Thomas Connolly, being first duly sworn, on his oath says that he is the plaintiff in the above entitled action, and knows all the facts set out in the aforegoing petition; that he has read the foregoing petition, and that the facts therein set forth are, as affiant believes, true.

"THOMAS CONNOLLY.

"Subscribed in my presence, and sworn to before me this 8th day of August, A. D. 1887.

"GEO. T. FISHER,

"Clerk District Court."

The verification is upon the belief of the affiant. He does not swear positively that the facts stated in the petition are true, but that he believes that they are true. Such an affidavit is not sufficient to justify the issuing of a writ of replevin. The statute authorizes the granting of the writ only when there shall be filed in the office of the clerk an affidavit of the plaintiff, his agent or attorney, showing: "1st. A description of the property claimed. 2d. That the plaintiff is the owner of the property, or has a special ownership or interest...