Meyer v. First National Bank of Platts-Mouth

• Decision Date: 22 January 1902
• Docket Number: 10,688
• Citation: 88 N.W. 867,63 Neb. 679
• Parties: JACOB MEYER ET AL. v. FIRST NATIONAL BANK OF PLATTS-MOUTH
• Court: Nebraska Supreme Court

88 N.W. 867

63 Neb. 679

JACOB MEYER ET AL. v. FIRST NATIONAL BANK OF PLATTS-MOUTH

No. 10,688

Supreme Court of Nebraska

January 22, 1902

ERROR from the district court for Cass county. Tried below before RAMSEY, J. Reversed.

REVERSED AND REMANDED.

John P Maule, for plaintiffs in error.

A. N Sullivan, contra.

DAY, C HASTINGS and KIRKPATRICK, CC. concur.

OPINION

DAY, C.

This action was brought in the district court of Cass county by the First National Bank of Plattsmouth against Jacob Meyer et al. to recover the possession of certain personal property specifically described in the petition. The trial resulted in a verdict and judgment for the plaintiff, to review which the defendants have brought error to this court. The facts out of which the controversy arises are briefly as follows: On November 29, 1895, one W. G. Keefer was the owner and in possession of a stock of harness and saddlery goods, and was indebted to a number of creditors, among whom were the plaintiff and defendant in this action. To secure the indebtedness to the plaintiff, which amounted to $ 600, Keefer executed and delivered a chattel mortgage upon his stock, and also surrendered the possession of the mortgaged property to the plaintiff. At the same time and as a part of the same transaction, he gave his note to the plaintiff as evidence of the indebtedness, which by its terms was due and payable April 1, 1896. A few days after the execution of the mortgage the defendant commenced an action against Keefer, and caused an attachment to be issued and levied upon the stock then in the possession of the plaintiff. To regain possession of the stock, the present action was instituted.

It is strenuously contended on the part of the defendants that the petition does not state a cause of action. The argument is made that no fact is alleged showing that any condition of the mortgage had been broken, so as to authorize the plaintiff to take possession of the property; and the case of Raymond v. Miller, 50 Neb. 506, 70 N.W. 22, and other similar cases decided in this court, are cited in support of the argument. In each of the cases cited, however the mortgagee had never been placed in possession of the mortgaged property, and in each case was seeking possession by virtue of the mortgage. It was held--we think very properly--that the mere allegation of the special ownership and lien upon the property by virtue of a chattel mortgage given to the plaintiff, is not, alone, sufficient to show a right of possession. In the case cited the vice of the pleading was that no fact was alleged showing that the mortgagee was entitled to possession. In the present case, however, it is alleged and proved that the...