Paxton v. Learn

• Decision Date: 23 June 1898
• Citation: 55 Neb. 459,75 N.W. 1096
• Parties: PAXTON ET AL. v. LEARN, CONSTABLE.
• Court: Nebraska Supreme Court

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.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 after the mortgages were executed. Paxton & Gallagher thereupon instituted this action of replevin against Learn before a justice of the peace to recover the property so seized under the execution, claiming to be the absolute owners of the portion of the goods bought by Davidson subsequent to the giving of the mortgage, and asserting a mortgage lien on the remainder of the stock. Upon giving bond, the goods were delivered to Paxton & Gallagher. It appearing from the return of the officer that the value of the property was not within the jurisdiction of the justice, the cause was certified to the district court. A trial was there had, without pleading by either party, upon the affidavit in replevin and the transcript from the justice of the peace, and on motion of the defendant a verdict was returned in his favor, upon which judgment was subsequently entered. The mortgage to Paxton & Gallagher was given to secure a bona fide indebtedness, but it is insisted that the transaction was rendered fraudulent as to the...