Stickell v. Haggerty, 33412

• Decision Date: 22 January 1954
• Docket Number: No. 33412,33412
• Citation: 158 Neb. 34,62 N.W.2d 107
• Parties: STICKELL v. HAGGERTY.
• Court: Nebraska Supreme Court

Page 107

62 N.W.2d 107

158 Neb. 34

STICKELL v. HAGGERTY.

No. 33412.

Supreme Court of Nebraska.

Jan. 22, 1954.

Syllabus by the Court.

1. The burden is on the plaintiff in a replevin action to prove by a preponderance of the evidence that at the time of the commencement of the action he was the owner of the property sought to be replevied, that he was entitled to the immediate possession of it, and that the defendant wrongfully detained it.

2. Pursuant to statute when a person procures, contracts with, or hires another person to feed and care for any livestock, the person so procured, contracted with, or hired shall have a first, paramount, and prior lien upon such property for feed and care bestowed by him for the contract price, and in case no price has been agreed upon, then for the reasonable value of the feed and care.

William S. Padley, Gothenburg, for appellant.

Morrison & Gruver, McCook, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, Justice.

The defendant filed an answer in which after generally denying the allegations of plaintiff's petition he alleged, as to the animals involved in the action, that he took them under an oral agreement to keep and care for until sold, at the request of plaintiff, for which care and keep the plaintiff agreed to pay the fair and reasonable cost, and that the reasonable care and cost was $959.

For this amount the defendant prayed judgment against the plaintiff.

In his answer the defendant asserted that he is entitled to a further amount of $52.50 as one-half of the sale price of six calves but we do not think that the record in this case is sufficient to permit of any adjudication herein. This however may not be taken to mean that the defendant shall be barred or prevented from reasserting this claim in the further progress of this action.

To the answer the plaintiff filed a reply in which she pleaded that by agreement in writing the defendant agreed to and did care for other cattle and their calves and that by the terms of this written agreement agreed to care for and feed them until the calves were weaned for which he would receive one-half of the calves raised by the cows, and that it was orally agreed that the cattle involved here were taken under the same conditions as those taken under the written contract.

The case was tried to a jury and verdict was returned in favor of the plaintiff. Judgment was rendered in favor of plaintiff for possession of the cattle and damages in the amount of one cent. Motion for new trial was duly filed which motion was overruled. From the judgment and the order overruling the motion for new trial the defendant has appealed.

There are numerous assignments of error. The first is the following: 'The verdict is contrary to the evidence and was arrived at by the jury in disregard of the evidence.' The second is: 'The verdict is contrary to law.' These two will be treated together.

'The plaintiff in an action of replevin has the burden of proving his case by a preponderance or greater weight of the evidence. Thus, the burden is upon him to show that at the time of the commencement of the action he was the owner of the property sought to be replevied, that he is entitled to the immediate possession of the property, and that the defendant wrongfully detains it.' Fitzsimons v. Frey, 153 Neb. 124, 43 N.W.2d 531, 536.

Under this rule the plaintiff had the burden of proving by a preponderance of the evidence that she was entitled to the immediate possession of the cattle involved here.

The evidence of the plaintiff makes clear and conclusive that she placed the cattle in question with the defendant and that the defendant was to be compensated for that care.

The theory of her presentation is that the compensation to be received by the defendant was calves as she pleaded in her reply. However, as becomes apparent from a reading of the bill of exceptions, her evidence fails either directly or by reasonable inference to sustain this theory or any other theory. The written contract is in evidence but neither the plaintiff nor any other witness testified directly or indirectly that there was an oral...