Merrill v. Wedgwood

• Decision Date: 14 December 1888
• Citation: 41 N.W. 149,25 Neb. 283
• Parties: MERRILL v. WEDGWOOD, SHERIFF.
• Court: Nebraska Supreme Court

25 Neb. 283

41 N.W. 149

MERRILL

v.WEDGWOOD, SHERIFF.

Supreme Court of Nebraska.

Dec. 14, 1888.

Syllabus by the Court.

1. In an action of replevin a general denial puts in issue every material allegation of the petition, and under it the defendant may give evidence of any special matter which amounts to a defense to the plaintiff's cause of action.

2. Where a sheriff levies an order of attachment in his possession upon personal property, other orders may be levied upon the same property, subject to the prior levy, so long as he retains possession of and dominion over the property so levied upon; and if the levy is not wrongful, a lien will be created, to the extent of the amount represented by the attachments in his hands. But if, after such levy, the property is taken from his possession, in an action of replevin, and he receives other orders of attachment, no lien will be created upon the property thereby.

3. In such case, in an action of replevin, where the finding and decision of the district court are in favor of the sheriff, the judgment should be for the amount due, upon the orders of attachment in the hands of the sheriff, and under which a levy had been made prior to the execution of the order of replevin.

Error to district court, Hall county; HARRISON, Judge.

Replevin by W. H. Merrill against Edward A. Wedgwood, sheriff, for the possession of a stock of goods. Judgment in favor of defendant, and plaintiff brings error.Churchill & Carr and L. M. Whitney, for plaintiff in error.

O. A. Abbott, for defendant in error.

REESE, C. J.

This was an action in replevin, instituted by plaintiff in error for the possession of a stock of goods levied upon by the sheriff of Hall county, as the property of Frank Judson, to satisfy certain orders of attachment held by the sheriff against said Judson. A trial was had in the district court, which resulted in a finding and judgment in favor of the sheriff, to the extent of the levies made by him upon the goods prior to their replevin by plaintiff in error. It is contended by plaintiff in error that he purchased the property from E. C. Judson, wife of Frank Judson, the judgment debtor, and that she had purchased it from her husband prior to her transfer to him; while, upon the other hand, it is contended by defendant in error that the property, at the time of the levy, belonged to Frank Judson; the transfers referred to being only colorable and fraudulent. The trial court found especially the following facts and conclusions of law: “(1) That at the time of the commencement of this suit, to-wit, on the 17th day of June, 1887, the said defendant, E. A. Wedgwood, was the sheriff of Hall county, and was entitled to the possession of the property in controversy. (2) That his right to such possession was derived under sundry writs and orders of attachment, and that the amount and value of the same on that date was the sum of seven hundred eighty-three and 94-100 (783.94) dollars. (3) The court do further find that after the replevin of said property other writs and orders of attachment came to the hands of the sheriff prior to the return-day of the writ under which said property was replevied, which aggregate the sum of two hundred twenty-one and 50-100 (221.50) dollars. (4) That said property was taken from the possession of the defendant, and delivered to the plaintiff, and that its value was fifteen hundred (1,500) dollars. (5) The court do further find the interest on the amount of the writs and orders of attachment in the sheriff's hands, at date of replevin, to be twenty-seven and 43-100 (27.43) dollars, and the interest on the amount of the writs and orders of attachment coming to the hands of the defendant after the replevin of the property to be seven and 75-100 (7.75) dollars. And the court do find as conclusions of law: (1) That the defendant is entitled to a return of the property replevied, and, in case a return cannot be had, to a judgment for the value of his interest therein, to-wit, seven hundred eighty-three and 94-100 (783.94) dollars, and interest thereon at 7 per cent. to this date, amounting to twenty-seven and 43-100 (27.43) dollars, and which sums aggregate the sum of eight hundred eleven and 37-100 (811.37) dollars. (2) And the court do further find as conclusion of law that the defendant is not entitled to recover the value of the writs coming to his hands as such sheriff after the replevin of the property, and prior to the return-day of the original writs, and that such subsequent writs did not and do not constitute any lien on the property in controversy, or any valid claim against the plaintiff or his bondsmen, and that the defendant is not entitled to a judgment therefor in this action; to which conclusion of law the defendant excepted at the time, and thereupon the plaintiff filed a motion for a new trial, and after hearing the arguments of counsel, and being fully advised in the premises, it is ordered that said motion be, and the same is hereby, overruled; to which ruling and decision of the court the plaintiff excepted at the time, and 40 days are...