Raymond v. Miller

• Decision Date: 03 February 1897
• Parties: RAYMOND ET AL. v. MILLER ET AL.
• Court: Nebraska Supreme Court

50 Neb. 506

70 N.W. 22

RAYMOND ET AL.

v.MILLER ET AL.

Supreme Court of Nebraska.

Feb. 3, 1897.

Syllabus by the Court.

In an action by a mortgagee of chattels against a stranger for the conversion of the mortgaged property, the petition must set out the facts constituting plaintiff's special ownership. A mere allegation that he has a special ownership, right, title, and lien upon and to the property by virtue of a chattel mortgage given to him thereon by a designated person is not, alone, sufficient.

Error to district court, Saline county; Hastings, Judge.

Action by Theodore H. Miller and others against Raymond Bros. Judgment for plaintiffs. Defendants bring error. Reversed.G. M. Lambertson and F. M. Hall, for plaintiffs in error.

F. I. Foss, W. R. Matson, and Hastings & McGintie, for defendants in error.

NORVAL, J.

This was an action of conversion. There was judgment for plaintiffs below, and defendants prosecute error. Of the numerous errors assigned and argued by counsel, we do not deem it necessary to discuss more than one, namely, that the petition fails to state sufficient facts to constitute a cause of action, which was duly raised at the outset of the trial in the court below by objections to the admission of testimony on that ground, and again, after verdict, by the motion for a new trial, as well as by proper assignment in the petition of error filed herein. The allegations of the petition, so far as they are necessary to a determination of the question to be decided, are “that on the 25th day of July, 1888, the plaintiffs were entitled to the immediate possession of the following described goods and chattels, and had a special interest and ownership in the said goods and chattels, to the amount of $2,009.43, with interest at the rate of 10 per cent. from July 25, 1888, to wit, the entire stock of groceries, dry goods, clothing, queensware, wooden and willow ware, boots and shoes, hats, caps, and notions, glassware, tobacco, cigars, furniture, fixtures, scales, tanks, etc., including all of the stock of furniture and chattels of every name and nature whatever, which are contained in a certain brick building and cellar used by Pronger & Clarey in their mercantile business, in Crete, Saline county, Nebraska, of the value of $6,500.” It is alleged “that they have special ownership, right, title, and lien upon and to the above-described goods, by virtue of a chattel mortgage given to them upon the same by the said Pronger & Clarey, dated July 25, 1888, and duly recorded in the clerk's office of Saline county, Nebraska, a copy of which mortgage is hereto attached, marked ...