Philleo v. McDonald & McMurry

• Decision Date: 27 June 1889
• Citation: 42 N.W. 904,27 Neb. 142
• Parties: EDWARD PHILLEO v. MCDONALD & MCMURRY
• Court: Nebraska Supreme Court

42 N.W. 904

27 Neb. 142

EDWARD PHILLEO v. MCDONALD & MCMURRY

Supreme Court of Nebraska

June 27, 1889

ERROR to the district court for Adams county. Tried below before GASLIN, J.

AFFIRMED.

J. B Cessna, for plaintiff in error.

Dilworth Smith & Dilworth, for defendant in error.

OPINION

REESE CH. J.

This was an action of replevin instituted by defendant, in error against plaintiff in error for the possession of a stock of hardware and for damages in the sum of twenty-five dollars ($ 25.00).

The case was commenced in the county court, and appealed to the district court. The return of the constable to the summons was as follows:

"Received this writ, and on the same day I took the goods and chattels within described and have caused them to be valued by the oath of A. Bigelow and M. N. Cress, two responsible persons, whose valuation in writing and signed by them is herewith returned; and the plaintiff having failed to give the undertaking required by law, within twenty-four hours from the taking of the property, I redelivered said property to the said defendants. I also delivered to Edward Philleo a true and certified copy of this order."

A jury trial was had in the district court, which resulted in a verdict in favor of the plaintiff in the action, assessing his damages at three hundred and fifty-one dollars and ninety cents.

After the return of the verdict plaintiff in error moved the court for an alternative judgment, providing that in case the defendants in the action fail for twenty days to return the property, the plaintiff then have judgment for the amount of the verdict. This motion was overruled. A motion for a new trial was then made and overruled, but it need not be here noticed in detail. Plaintiff in error, who was defendant below, presents the case to this court by proceedings in error. There is but one controlling question involved in the case, and that is whether or not where a replevin suit is instituted, but no replevin undertaking is given, an alternative judgment can be rendered, or whether the action should be for money only. Section 193 of the Civil Code is as follows: "When the property claimed has not been taken, or has been returned to the defendant by the sheriff for want of the undertaking required by section one hundred and eighty-six, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as are right and proper; but if the property be returned for want of the undertaking required by section one hundred and eighty-six, the plaintiff shall pay all costs made by taking the same."

It is contended by counsel for plaintiff in error that in replevin cases, if the property is delivered to the plaintiff in the action, and final judgment is subsequently rendered against him, then there must be judgment for the return of the property, and if return cannot be had, then the payment of the value thereof, with damages for detention; that the same rule must be applied to cases which are prosecuted under section 193 above quoted; that the object of an action in replevin is to recover specific personal property, and the liability for the value of the property accrues only when a return of the property cannot be had; citing Lee v. Hastings, 13 Neb. 508, 14 N.W. 476; Frey v. Drahos, 10 Neb. 594, 7 N.W. 319; Reavis v. Horner, 11 Neb. 479, 9 N.W. 643.

It is not believed that these cases are in point, for the...