Penn v. Trompen
| Decision Date | 30 June 1904 |
| Docket Number | 13,376 |
| Citation | 100 N.W. 312,72 Neb. 273 |
| Parties | HANNAH PENN v. JOHN J. TROMPEN, SHERIFF, ET AL |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county: LINCOLN FROST JUDGE. Affirmed.
AFFIRMED.
Billingsley & Greene, for plaintiff in error.
John S Bishop and A. S. Tibbets, contra.
OLDHAM C. AMES and LETTON, CC., concur.
This is an action in replevin for the recovery of a corn sheller and the undivided half interest in a crop of growing corn and five horses. The suit was prosecuted by the plaintiff against John J. Trompen, sheriff of Lancaster county, and Charles Anderson and others, as defendants. Plaintiff claimed a special interest in the property replevied under two chattel mortgages, one executed by her son, Harwood Penn, and the other by her daughter-in-law, Stanza J. Penn. The sheriff claimed possession under an execution issued on a judgment of the county court against Harwood Penn and others; defendant Anderson claimed a special property in the five head of horses in controversy on a chattel mortgage executed by Harwood Penn, prior to the rendition of the judgment and prior to either of the mortgages executed to plaintiff. The only question involved in the controversy between plaintiff and the sheriff was as to the bona fides of plaintiff's mortgages. The question of the bona fides and priority of the mortgages of defendant Anderson was clearly and unequivocally established and the court properly directed a verdict in his favor, finding him entitled to a special property in the horses for the amount due on his note and mortgage. As between plaintiff and the sheriff the question of the good faith of plaintiff's mortgages was submitted to a jury; a verdict was rendered in favor of the defendant sheriff for possession of the corn sheller and the corn, and plaintiff brings error to this court.
This case was continued for a long time in the district court for Lancaster county before reaching this tribunal and many things are charged in connection with the preparation of the record in the cause below, which we can but hope are to be attributed to over-zeal of certain of counsel engaged in the trial of the cause, rather than to a deliberate attempt to mutilate and falsify the record. Be this as it may, the record first presented to this court was corrected by an additional transcript, made under the supervision of the trial judges before whom the proceedings were had, and, of course, on this record alone, the cause must be determined. It would serve no good purpose to even discuss the contentions with reference to the manner in which the original record was made up. Suffice to say, that it appears clearly from the additional transcript that the cause was originally instituted against the sheriff and Charles Anderson and others as defendants. It also clearly appears that although Anderson was not served with process, he came into court and filed an answer that the case was once tried before one of the judges of the district court for Lancaster county; that Anderson appeared and had judgment directed in his favor in that proceeding for the possession of the five head...
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