Morrill v. McNeill
| Decision Date | 01 July 1902 |
| Parties | MORRILL v. MCNEILL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Commissioners' opinion. Department No. 1. Error to district court, Logan county; Grimes, Judge.
“Not to be officially reported.”
Action by Charles A. Morrill against Ruth McNeill. Judgment for defendant, and plaintiff brings error. Reversed.Wilcox & Halligan, for plaintiff in error.
Hoagland & Hoagland, for defendant in error.
This is a replevin action, brought by plaintiff in error against Allen McNeill, Ruth McNeill and others, in the district court of Logan county, on January 19, 1892, to recover possession of a large amount of personal property, consisting of farm machinery, horses, harness, wheat, corn, etc. During the time the sheriff was removing the property described in the writ from the premises of the McNeills a settlement of the entire matter in controversy was effected between Allen McNeill, claiming to represent his wife as well as himself in making such settlement, and plaintiff in error. By the terms of this settlement, plaintiff in error was to retain a certain amount of the personal property replevied, for which Allen McNeill executed a bill of sale, which he signed, and to which he also signed the name of his wife, Ruth, by himself as agent. Plaintiff in error was to turn over to Allen McNeill a consideraable amount of the property replevied, consisting of one team, the farm machinery, and 100 bushels of corn and an equal amount of wheat. It was agreed that he should, in payment for that portion of the property which he retained, credit on the note of Allen McNeill, under which he brought his replevin action, the sum of $801.45. The agreement then entered into seems to have been carried out by plaintiff in error. A credit of $801.45 was made on the note signed by Allen McNeill, which left a balance of between $200 and $300 on the indebtedness. For this sum Allen McNeill gave a new note, secured by a certain collateral note which he had. Plaintiff in error credited the note which he held against Allen McNeill with the sum agreed upon, surrendered the note to him, and released of record the chattel mortgage securing the note, under which he claimed right to the possession of the personal property in the replevin action. At the next succeeding term of court in that county, in September, 1892, the replevin action was dismissed in accordance with the agreement of the parties. About two years afterward, and in 1894, defendant in error Ruth McNeill made an application to set aside the order of dismissal of the replevin action and for a reinstatement of the case. This application was heard in the district court, the dismissal was set aside, and from the order setting aside the dismissal plaintiff in error prosecuted error proceedings to this court, the opinion of the court being reported in 91 N. W. 601. At the April term, in 1897, of the district court in that county, the dismissal of the replevin action was finally set aside, the cause reinstated, and the case set for trial. On the 12th day of September, 1899, plaintiff in error, by leave of court, filed a supplemental petition in the replevin action, pleading, in substance, that after the sheriff had taken possession of the personal property of defendants in error under the writ of replevin, a full and complete settlement of all matters in controversy was had, setting up the conditions of such settlement; that plaintiff in error had fully complied with all the agreements and conditions of such settlement on his part to be kept and performed; that he had released his chattel mortgage, and had credited on the note of Allen McNeill $801.45, less certain amounts expended for taxes and costs of suit, in accordance with the agreement; that he had returned to the defendants in error a large amount of personal property, among which was 100 bushels of corn and 100 bushels of wheat; that defendants in error had retained all of the property thus returned, including the wheat and corn, and had received the benefits therefrom, well knowing that plaintiff in error had made upon the note of Allen McNeill the credit agreed upon, and had released his chattel mortgage, etc.; and that defendant in error Ruth McNeill had ratified such settlement by her acts, and was estopped to bring the settlement in question. To this supplemental petition separate answers were filed by Allen McNeill and Ruth McNeill. It was subsequently determined by the trial court that the judgment of dismissal had never been set aside as to Allen McNeill; that he was concluded by such dismissal, and was no longer a party to the case. No objection is made to this ruling, and no further notice need be taken of the rights of Allen McNeill. Ruth McNeill, in her separate answer to the supplemental petition of plaintiff in error, pleaded: First, a general denial, and, in substance, that the matters in controversy had been fully adjudicated and determined by the trial court in her application to vacate the order of dismissal, and therefore the matter was res adjudicata; that plaintiff in error had no right, title, or interest in or to about 870 bushels of corn and about 946 bushels of wheat, all of the value of $750, possession of which he had procured under his writ in the replevin action, which, it was alleged, he had falsely and fraudulently commenced; that her husband, Allen McNeill, was sick and insane at the time of the alleged settlement, and that he was physically and mentally unable to transact any business or to make such a...
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