Snow v. Vandeveer

• Decision Date: 12 January 1892
• Parties: SNOW v. VANDEVEER.
• Court: Nebraska Supreme Court

33 Neb. 735

51 N.W. 127

SNOW

v.VANDEVEER.

Supreme Court of Nebraska.

Jan. 12, 1892.

Syllabus by the Court.

1. In an action for the conversion of corn, a verdict was returned in favor of the plaintiff. The defendant thereupon filed a motion for a new trial, which soon afterwards was overruled. In consequence of a decision of the supreme court on a similar question, the district court during the same term reviewed its former ruling on the motion for a new trial, and reversed the same, and granted a new trial. Held that this was within the powers of the court, and, under the circumstances, was not an abuse of discretion.

2. On the second trial no evidence was offered by either party, whereupon the court dismissed the action. Held, that it was the duty of the plaintiff to offer evidence in support of his case, and that the supreme court would not review the action of the district court in granting a new trial in advance of the second trial.

Error to district court, York county; NORVAL, Judge.

Action by Alfred L. Snow against Walter R. Vandeveer for the conversion of certain corn. Judgment for defendant on dismissal. Plaintiff brings error. Affirmed.Sedgwick & Power, for plaintiff in error.

E. A. Gilbert and Geo. B. France, for defendant in error.

MAXWELL, C. J.

The cause of action is set forth in the petition as follows: “That on the 29th day of May, 1888, one John Hyland was indebted to one Charles Daniels upon two promissory notes of that date, executed by the said Charles Daniels and one Sylvester Evans, one of said notes becoming due the 15th day of August, 1888, and the other the 15th day of November, 1888; and also on that day the said Hyland was the owner of twenty acres of corn in the field on Mrs. Corlan's farm of eighty acres, on the north half of the north-west quarter of section 19, township 9, range 1, in York county, Neb., being his two-thirds interest in thirty acres of corn in said field. And to secure the payment of said notes on that day the said Hyland, together with the said Evans, executed and delivered to the said Daniels his chattel mortgage, whereby he mortgaged and conveyed the said corn, together with other property, to the said Daniels, which said mortgage was duly filed in the office of the county clerk of York county, Neb., on the ______ day of May, 1888, and all of said property so mortgaged and conveyed was not and is not of sufficient value to pay the aforesaid promissory notes and interest thereon; and the said Hyland and Evans were at the time of the commencement of this action, and still are, wholly insolvent, and nothing can be collected from them, or either of them. And afterwards, and before the maturity of the said notes, the said Daniels sold and assigned the said notes and the said...