McCormick Harvesting Mach. Co. v. Preitauer
| Decision Date | 01 July 1902 |
| Citation | 91 N.W. 499,3 Neb. [Unof.] 230 |
| Parties | MCCORMICK HARVESTING MACH. CO. v. PREITAUER. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Commissioners' opinion. Department No. 1. Error to district court, Dawson county; Grimes, Judge.
“Not to be officially reported.”
Action by C. F. Preitauer against the McCormick Harvesting Machine Company Judgment for plaintiff, and defendant brings error. Affirmed.O'Neill Gilbert, E. A. Cook, and W. D. Giffin, for plaintiff in error.
H. S. Ridgely, H. B. Fleharty, and H. D. Rhea, for defendant in error.
This action was instituted as one in replevin in the county court of Dawson county. The property the subject of controversy herein had been seized by plaintiff in error under certain chattel mortgages held by it, and was retaken on the writ of replevin in the case at bar; but, on failure of defendant in error to furnish a bond, the property was returned to plaintiff in error, and the action proceeded as one for damages.
The cause was tried to the county court, resulting in a judgment for defendant in error, from which an appeal was prosecuted to the district court, where the cause was tried to the court, a jury having been waived, resulting in a judgment for defendant in error, from which error is prosecuted to this court. The trial court found that defendant in error was the owner, and entitled to the possession, of the property at the time the action was brought; that the property taken by plaintiff in error was of the value of $300. Of the property taken, $280 in value was covered by the mortgages of plaintiff in error, and one steer of the value of $20 was not included in the mortgages. The court further found that there was due on the mortgages held by plaintiff in error the sum of $159.53, and gave defendant in error judgment for the sum of $140.47, with interest thereon, making a total of $143.74, being the difference in value of the property taken by plaintiff in error and the amount at that time due on its several mortgages. Among other things, the court found that the mortgages of plaintiff in error were due and unpaid at the time it seized the property, and that the act of plaintiff in error in taking the property in the manner pleaded was the act of a trespasser. Plaintiff in error contends that the following questions are presented by the record: (1) Who was entitled to the possession of the stock at the time it was taken into possession by the defendant (plaintiff in error)? (2) Did the circumstances attendant upon the taking possession of the stock by defendants make them trespassers, and deprive them of the rights granted by the mortgagees? And (3) the rule of damages to be applied.
It is disclosed by the record that defendant in error, who resided in Lincoln county, had given mortgages to plaintiff in error covering a McCormick binder, a span of horses, and some cattle. Some time after the mortgages were due, plaintiff in error sent one John Strahle, a constable of Dawson county, who was a defendant in the suit below, but who appears not to have been brought into this court, to the farm of defendant in error, for the purpose of foreclosing the mortgages. Defendant in error forbade the constable, who was not within the county of his jurisdiction, from taking any of the stock under the mortgages, and refused to permit him to take the property, notifying him and warning him not to do so, and informed him that he was required to take the property, if at all, in accordance with law. Strahle insisted upon his right to take the property under the mortgages, and proceeded to do so; opened the corral gate, and drove the stock out and away from the place of defendant in error, the latter all the while protesting against his action. The property was taken to the village of Gothenberg, in Dawson county, and there sold. Whether it was advertised as required by law, or sold at...
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