Robinson v. Kilpatrick-Koch Dry Goods Company
| Decision Date | 03 March 1897 |
| Docket Number | 7182 |
| Citation | 70 N.W. 378,50 Neb. 795 |
| Parties | THOMAS ROBINSON ET AL. v. KILPATRICK-KOCH DRY GOODS COMPANY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Buffalo county. Tried below before BATES, J. Reversed.
REVERSED AND REMANDED.
Greene & Hostetler, Dryden & Main, and George E. Evans, for plaintiffs in error.
Calkins & Pratt, contra.
It appears herein that some time prior to and during the year 1890 W. L. Randall was engaged in mercantile business in the village of Gibbon, Buffalo county, this state. In the course of such business he became indebted to a number of wholesale dealers for goods and merchandise, including the Kilpatrick-Koch Dry Goods Company, defendant in error in this cause. November 20, 1890, the defendant in error obtained from Randall a chattel mortgage on his stock of merchandise to secure the payment of his indebtedness to the company, and on the same date other chattel mortgages, in favor of other parties and firms, were executed by Randall, a number of which were subsequently, together with the accounts or notes the payment of which they were given to secure, assigned to defendant in error. The company took possession of the stock of goods under its mortgage, and other parties instituted actions and attachment proceedings. In some of the actions judgments were obtained and executions issued. After service of the writs of execution and attachment on the stock of merchandise by the plaintiffs in error, one of them the sheriff of Buffalo county and the other a constable, the defendants in error commenced this, an action of replevin against the officers to recover the possession of the merchandise. A trial of the issues in the case resulted in a verdict and judgment favorable to the company. The unsuccessful parties have prosecuted error proceedings to this court.
The counsel for plaintiffs in error made application, by motion for leave to amend the petition in error to include an assignment that the evidence was insufficient to support the verdict, which has been granted. It is disclosed by the record presented here that one of the grounds of the motion for new trial in the district court was the insufficiency of the evidence to sustain the verdict rendered. From this it must be concluded that the question was raised in the trial court, hence the amendment was proper and allowable. The averments in regard to the defendant in error's ownership of the merchandise in controversy were identical in the petition and the replevin affidavit, being in each an allegation of general ownership and in the following terms "That the plaintiff is the owner and entitled to the immediate possession of the following described goods and chattels, to-wit:" The verdict was: "That the plaintiff, at the commencement of the action, was the owner and...
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