Manning v. Cunningham

• Court: Nebraska Supreme Court
• Writing for the Court: MAXWELL
• Citation: Manning v. Cunningham, 21 Neb. 288, 31 N.W. 933 (Neb. 1887)
• Decision Date: 24 February 1887
• Parties: MANNING AND OTHERS v. CUNNINGHAM.

21 Neb. 288

31 N.W. 933

MANNING AND OTHERS

v.CUNNINGHAM.

Supreme Court of Nebraska.

February 24, 1887.

Syllabus by the Court.

In an action at law to obtain a review of errors which have occurred during the progress of the trial, they must be assigned in the motion for a new trial.

A chattel mortgage executed by the mortgagor in possession of the property as owner, although the legal title was not to pass to him until the chattels were paid for, where such contract of conditional sale was not filed for record, will take precedence over the secret lien of the party claiming to be the real owner of the property.¹

Where the only assignment of error in the motion for a new trial is that the “verdict is contrary to the facts,” the verdict will not be set aside unless clearly wrong.

Error from Douglas county.

D. Van Etten, for plaintiff.

C. J. Smyth, for defendant.

MAXWELL, C. J.

This is an action of replevin, brought by Cunningham against Black, to recover the possession of a span of mules. Manning claimed a special ownership in the mules by virtue of a chattel mortgage executed by Black to him, and on his motion he was permitted to intervene. The property was taken on the order of replevin, and delivered to Cunningham. On the trial of the cause the jury returned a verdict, finding the right of possession of the property at the commencement of the action to be in Cunningham, and awarding him five cents damages. Manning thereupon filed a motion for a new trial “because said verdict is contrary to the facts, and upon the ground of newly-discovered evidence.” The motion was overruled, to which he excepted, and now assigns errors in this court as follows: “(1) The judgment of the court that defendants pay the costs of action, when the evidence shows that they were in the rightful possession of said property, and when the action was commenced without demand made upon them, or either of them, to yield possession to the plaintiff, is contrary to law; (2) the court erred in overruling a motion for a new trial; (3) that the verdict of the jury is not sustained by sufficient evidence in finding the plaintiff entitled to the possession of the mules in controversy at the time of the commencement of the action; (4) that the verdict of the jury is contrary to law, in finding the plaintiff entitled to the possession of said mules under the issue joined, withoutalso finding him the owner of the same, which it did not find; (5) that the instructions of the court given to the jury on its own motion were insufficient, vague, misleading, and contrary to law; (6) that said judgment is not sustained by the verdict rendered; (7) that the verdict is contrary to law; (8) that said verdict is not sustained by sufficient evidence. The plaintiff therefore prays (1) that said judgment be reversed; (2) that judgment be rendered in favor of said Manning, and against said Cunningham, for the sum of $250, with interest from the twenty-first day of November, 1883, as the proof shows they were worth that sum on that day, with costs of suit; or (3) in lieu thereof, that said action be remanded for a new trial, and for such other relief as justice may require.”

The rule is well settled in this court that errors which are alleged to have occurred during the trial must be assigned in the motion for a new trial, or they will be...