Suckstorf v. Butterfield

• Court: Supreme Court of Nebraska
• Citation: 54 Neb. 757,74 N.W. 1076
• Decision Date: 21 April 1898
• Parties: SUCKSTORF ET AL. v. BUTTERFIELD.

54 Neb. 757
74 N.W. 1076

SUCKSTORF ET AL.
v.
BUTTERFIELD.

Supreme Court of Nebraska.

April 21, 1898.

Syllabus by the Court.

1. A plaintiff in replevin, who pleads only a special ownership, must prove such title as he pleads it, and cannot recover on proof of general ownership.

2. Therefore, where plaintiff asserts only such special ownership, the defendant may, to defeat the action, show that plaintiff's title is of a different character.

Error to district court, Pierce county; Robinson, Judge.

Replevin by William H. Butterfield, Jr., against August Suckstorf and Reinhart Reimers. Judgment for plaintiff, and defendants bring error. Reversed.

[74 N.W. 1076]

H. C. Brome and Douglas Cones, for plaintiffs in error.

Powers & Hays, for defendant in error.

IRVINE, C.

Butterfield, in October, 1891, sold 160 steers to one Perry, who gave his note for the purchase money, securing the same by chattel mortgage on the cattle. The cattle were bought in Knox county, and were by Perry taken to Pierce county, where he contracted with one Tatgo to feed them during the winter. In the following spring Tatgo undertook to sell them in satisfaction of his lien as an agister. They were bought at the sale by one Dixon, and were then driven to the town of Pierce, and a portion of them were placed in the pasture of Suckstorf and Cones, in charge of the defendant Reimers. Butterfield had in the meantime appeared on the scene, and was asserting his right under the mortgage. Negotiations then took place, which resulted in Butterfield's paying $750, Tatgo making some settlement with the purchaser, and agreeing to surrender the cattle the cattle to Butterfield. Accordingly an attempt was made to “cut out” from the herd of defendants the Tatgo cattle, and a number corresponding to the number placed there were delivered to Butterfield. Later Butterfield claimed that 19 of his cattle remained in the defendants' possession, and brought this action in replevin to recover them. At the close of the evidence the court granted a peremptory instruction to find for the plaintiff. During the trial the defendants offered in evidence an affidavit and notice of sale, for the purpose of proving Tatgo's proceedings in enforcing his agister's lien. There was also offered a bill of sale purporting to convey the cattle from Dixon, the purchaser at the sale under the agister's lien, to Butterfield, together with proof that he had requested it to be executed, and that it had been sent to him by mail....