Trompen v. Yates
| Decision Date | 03 December 1902 |
| Docket Number | 12,221 |
| Citation | 92 N.W. 647,66 Neb. 525 |
| Parties | JOHN J. TROMPEN v. CHARLES YATES ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court for Lancaster county. Action in the nature of trover. Tried below before HOLMES, J. Judgment for plaintiffs and defendant brings error. Affirmed.
AFFIRMED.
Lionel C. Burr, Elmer E. Spencer and Willard E. Stewart, for plaintiff in error.
Thomas J. Doyle, George W. Berge and Frank J. Kelley, contra.
LOBINGIER, C., not sitting.
This was an action brought by the defendants in error jointly claiming damages for the conversion by plaintiff in error, as sheriff, of certain goods. February 18, 1897, Francis E Price gave a chattel mortgage on her stock of drugs in the store at the corner of Tenth and P streets in the city of Lincoln, Nebraska, for $ 500, to her husband, J. W. Price. The same day she also executed a chattel mortgage on the same drugs to J. R. Nichols for $ 100, for services as a clerk in the store; also to Chas. Yates for $ 40, for services in the store; also to J. D. Johnson for $ 25, for grocery bill; also to Victor Weiler for $ 20, borrowed money; also to W. L. Garten for $ 30, borrowed money; also to C. M. Seitz for $ 20, grocery bill; and also to F. J. Kelley for $ 350. Of this amount $ 266 was claimed to be due for past services, $ 40 for borrowed money, and the remainder for contemplated services in upholding the transfers; but on this indebtedness to Kelley was to be credited $ 90.15, store account. A mortgage was also made to the Lincoln Drug Company for $ 110, and to W. E. Clarke for $ 350, and to Kipp Bros. for $ 110, to secure indebtedness due them. The execution and filing of the mortgages was without the knowledge of the mortgagees, except Price, Nichols, Weiler and Kelley, but the action was ratified subsequently by all of the other mortgagees, who were parties to this action. The mortgages of Price, Nichols, Kelley and Yates were all filed at 2:35 P. M.; the mortgages of Johnson, Weiler, Seitz and Garten at 2:40 P. M.; and those of the Lincoln Drug Company, Clarke, and Kipp Bros. at 2:45 P. M.,--on February 20, 1897. The mortgagee Kelley claimed to have taken possession of the stock of goods on behalf of the mortgagees immediately on the filing of the instruments, and to have placed an inscription on the front door, "Closed under chattel mortgage." He claims to have retained such possession until the goods were levied upon by Sheriff Trompen. The remnant of the goods left by the sheriff he claims to have sold for $ 585, and with the proceeds paid $ 100 to Nichols and $ 485 to Price. The answer alleges a misjoinder of causes of action; a misjoinder of parties plaintiff; the seizure of the goods in question by the sheriff on an attachment procured by Charles K. Cobb, trustee; the dissolution of such attachment by the county court; an appeal from such dissolution, with supersedeas bond, to the district court for Lancaster county; the affirmation in the district court of the county court's order of dissolution; and the filing of another supersedeas bond and error proceedings to this court, which are in the answer alleged to be still undetermined, and by reason of the pendency of such proceedings in this court, that this action was prematurely brought. The answer also alleges that the mortgages were fraudulent; alleges possession of the goods by defendant Trompen under the attachment and also under an execution in favor of the Lincoln Drug Company against Francis E. Price for $ 96.40, which was also levied upon the same goods. The petition of the plaintiffs below alleged that they were in the actual possession of the goods and that these were wrongfully taken away from their possession by the defendant sheriff. Copies of their several mortgages were attached. A motion was filed by the sheriff to require the plaintiffs to more specifically state in what manner he had taken possession of the goods; to state particularly what merchandise was taken under execution and what under attachment. A demurrer was also filed--first, that there was a defect of parties plaintiff; and second, that the petition did not state facts sufficient to constitute a cause of action in favor of plaintiffs. Both motion and demurrer were overruled, and the defendant then answered as above stated. Plaintiffs' reply denied such matters as were not admitted; admitted that defendant was sheriff; admitted his allegations as to the attachment by Cobb, trustee, against Francis Price, and the dissolving of the attachment, the supersedeas and the proceedings in district court and this court; and admitted the judgment of the Lincoln Drug Co. against Francis Price, and the levy of its execution. The reply alleged that the defendant had asked and obtained the making of the Lincoln Drug Co. a party defendant, and had asked and been refused an order to have J. W. Price, Nichols and Kipp Bros. made parties to the action, because of their holding mortgages upon the same goods. The defendant, Trompen, asked for an instruction for a verdict in his favor, which was refused. A verdict was returned for the plaintiffs in the sum of $ 456.10. Motion was entered for judgment in defendant's favor notwithstanding the verdict, which was overruled. A motion was made for a new trial on the grounds that the court should not have permitted the introduction of any evidence because the petition showed a misjoinder of parties plaintiff and because the petition did not state facts sufficient to warrant a judgment in plaintiffs' favor; for error in refusing a peremptory instruction for the defendant at the close of the evidence; error in giving each of the first eight instructions given by the court on its own motion; error in refusing to give each of the sixth, seventh and eighth instructions asked by defendant; insufficiency of the evidence; errors of law; and error in refusing to require special findings from the jury. This, too, was overruled, judgment entered on verdict, and defendant Trompen brings error.
Two briefs have been filed on behalf of the plaintiff in error in one of which the sole question argued is the alleged misjoinder of the plaintiffs. It is urged that section 40 of our Code of Civil Procedure furnishes no warrant for joining these plaintiffs, because they have no common right; that their mortgages were filed at different times and their holding can not be joint. This result does not seem necessarily to follow even from holding their mortgages separate and distinct liens upon this same property. They allege a joint possession, which they say the sheriff has invaded. If in fact they were in the joint possession of these goods and the sheriff wrongfully took them, it would seem to constitute a common wrong against all the tenants who were jointly holding. Each would have a joint interest with all the others in vindicating their joint possession. Their case would seem to come distinctly within the terms as well as the spirit of section 40 of the Nebraska Code of Civil Procedure. The question seems to be argued, however, as if there has been no attempt to take...
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