Schars v. Brand

• Decision Date: 27 June 1889
• Parties: SCHARS v. BRAND.
• Court: Nebraska Supreme Court

27 Neb. 94

42 N.W. 906

SCHARS

v.BRAND.

Supreme Court of Nebraska.

June 27, 1889.

Syllabus by the Court.

1. Where a sheriff levied an execution upon a stock of drugs contained in a drug-store, and took them into his possession as the property of A., and which were replevied from the sheriff by B., who claimed to be the owner, and upon a jury trial the drugs were found to be the property of B., the trial jury, in estimating the damages due to B. by reason of illegal detention of the property by the sheriff, will not be confined to the net income of the store at or about the time of the levy. They may take into consideration all other elements of damage shown upon the trial, such as the closing of the store, the handling of the goods in making the inventories, etc.; and in such case, where about one week of time intervened between the levy by the sheriff and the restoration of the goods to the plaintiff in the action by the coroner under the proceeding in replevin, a verdict for $150 damages was not excessive.

2. In an action of replevin against the sheriff by a third party and stranger to the execution, who had the goods in his possession at the time of the levy by the sheriff, and where the sheriff justifies under such execution in order to maintain his possession, he must show by competent proof his authority for such seizure. In case he fails to do so, the plaintiff in the action will be entitled to judgment for the possession of the goods, and his damages.

Error from district court, Saunders county; HAMER, Judge.Marston & Nevins, for plaintiff in error.

REESE, C. J.

This was an action in replevin instituted by defendant in error against plainin error for a stock of drugs, levied upon by plaintiff as sheriff of Buffalo county. A jury trial was had in the district court, which resulted in a verdict in favor of defendant in error sustaining his title to the property involved, and for $150 damages. It appears from the record that Flescher & Henline were in the drug business as copartners on and prior to the 16th day of January, 18--, and that defendant in error, who is the brother-in-law of Flescher, had become liable for the debts of Flescher, and perhaps of Flescher & Henline, to the amount of about $2,000, by becoming surety therefor. Flescher also owed defendant in error $2,220.50, making a total of $4,241.50. Defendant in error induced Henline to sell his interest in the stock to Flescher, and then purchased from Flescher. The transfer was made on the date above named. The indebtedness assumed by defendant in error, together with the amount owing to him by Flescher, was more than the value of the stock of goods on hand. Defendant in error seems to have taken possession of the stock, but retained both Flescher and Henline as clerks. On the 24th day of January plaintiff in error, as sheriff, levied an execution upon the property, and took it into his possession, when defendant in error replevined it. The sheriff, as plaintiff in error, brings the case to this court for review, and it will be examined in the order presented by him in his brief.

The first contention of plaintiff in error is that the damages allowed defendant in error by the jury were excessive. It seems from the record that defendant in error instituted the replevin proceedings immediately after the levy upon the goods by the...