Paxton v. Learn

CourtSupreme Court of Nebraska
Writing for the CourtNORVAL
Citation55 Neb. 459,75 N.W. 1096
PartiesPAXTON ET AL. v. LEARN, CONSTABLE.
Decision Date23 June 1898

55 Neb. 459
75 N.W. 1096

PAXTON ET AL.
v.
LEARN, CONSTABLE.

Supreme Court of Nebraska.

June 23, 1898.



Syllabus by the Court.

1. In replevin, where plaintiff bases his right to possession of the property upon a special ownership by virtue of a chattel mortgage, he must plead the facts which create such special ownership and right to possession.

2. An allegation of general ownership and right of possession cannot be proved by introducing in evidence a mortgage on the chattels replevied.

3. Evidence examined, and held not to establish an absolute ownership of the property in plaintiff.


Error to district court, Douglas county; Blair, Judge.

Replevin by Paxton & Gallagher against William R. Learn, constable. Defendant had judgment, and plaintiffs bring error. Affirmed.

[75 N.W. 1096]

McCabe, Wood, Newman & Elmer, for plaintiffs in error.

Bartlett, Baldrige & De Bord, for defendant in error.


NORVAL, J.

David Davidson, on June 27, 1893, was engaged in the grocery business in South Omaha, and, being insolvent, he gave to several of his creditors mortgages covering his entire stock of merchandise, as follows: Consolidated Coffee Company, $922.80, John Bradley, $405.97, Paxton & Gallagher, $568.98, and others. The mortgages had priority in the order named. Allen Bros. had an attachment lien for $138.25, superior to the lien of Paxton & Gallagher. Under and in pursuance of an agreement between the mortgagor and the mortgagees, Davidson remained in the possession of the goods, disposed of them in the regular course of trade at retail, replenished the stock from time to time from the proceeds of the sale, and paid off prior to the following October the claims of all the above-mentioned creditors, excepting Paxton & Gallagher. Davidson remained in possession of the stock until August, 1894, and made sales therefrom, used the proceeds to purchase new goods and defray the expenses of running the business, but paid no portion of the mortgage debt to Paxton & Gallagher. On June 28, 1893, the American Biscuit & Manufacturing Company obtained a judgment before a justice of the peace of Douglas county against Davidson for the sum of $123.25 debt and costs. Execution was issued on this judgment on August 20, 1894, and delivered to William R. Learn, constable, who levied the writ on the same day upon certain merchandise in the possession of Davidson, as his property, a portion of the same being covered by the mortgages aforesaid, and the remainder being goods purchased...

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2 practice notes
  • Perry County Bank v. Rankin
    • United States
    • Supreme Court of Arkansas
    • March 11, 1905
    ...18 Enc. Pl. & Pr., pp. 537, 538; Tuthill v. Skidmore, 124 N.Y. 148, 26 N.E. 348; Deyerle v. Hunt, 50 Mo.App. 541; Paxton v. Learn, 55 Neb. 459, 75 N.W. 1096; Thompson Mfg. Co. v. Nicholls, 52 Neb. 312, 72 N.W. 217. Where the plaintiff alleges a special ownership in the property, the [73......
  • Perry County Bank v. Rankin
    • United States
    • Supreme Court of Arkansas
    • March 11, 1905
    ...& Eng. P. & P. pp. 537, 538; Tuthill v. Skidmore, 124 N. Y. 148, 26 N. E. 348; Deyerle v. Hunt, 50 Mo. App. 541; Paxton v. Learn, 55 Neb. 459, 75 N. W. 1096; Thompson Mfg. Co. v. Nicholls, 52 Neb. 312, 72 N. W. 217. When the plaintiff alleges a special ownership in the property, the......
2 cases
  • Perry County Bank v. Rankin
    • United States
    • Supreme Court of Arkansas
    • March 11, 1905
    ...18 Enc. Pl. & Pr., pp. 537, 538; Tuthill v. Skidmore, 124 N.Y. 148, 26 N.E. 348; Deyerle v. Hunt, 50 Mo.App. 541; Paxton v. Learn, 55 Neb. 459, 75 N.W. 1096; Thompson Mfg. Co. v. Nicholls, 52 Neb. 312, 72 N.W. 217. Where the plaintiff alleges a special ownership in the property, the [73......
  • Perry County Bank v. Rankin
    • United States
    • Supreme Court of Arkansas
    • March 11, 1905
    ...& Eng. P. & P. pp. 537, 538; Tuthill v. Skidmore, 124 N. Y. 148, 26 N. E. 348; Deyerle v. Hunt, 50 Mo. App. 541; Paxton v. Learn, 55 Neb. 459, 75 N. W. 1096; Thompson Mfg. Co. v. Nicholls, 52 Neb. 312, 72 N. W. 217. When the plaintiff alleges a special ownership in the property, the......

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