Ulrich v. McConaughey
| Decision Date | 20 November 1901 |
| Citation | 88 N.W. 150,63 Neb. 10 |
| Parties | ULRICH v. MCCONAUGHEY ET AL. |
| Court | Nebraska Supreme Court |
1. Where property has been delivered to the plaintiff in replevin, and defendant's answer is a general denial, it is not necessary that such answer contain a prayer for return in order to sustain a judgment for return of the property or its value.
2. A plaintiff in replevin, who, by his own admission in open court, has disposed of the property delivered to him, and is not able to return it, will not be heard to complain that a judgment rendered against him is for the value of the property only, and not alternative, as prescribed by section 191a, Code Civ. Proc.
3. The fact that plaintiff may have disposed of the property delivered to him under the writ, so that a return will not be possible, does not change the nature of the action, so as to obviate the requirements of section 191, Code Civ. Proc., as to the form of the verdict.
4. Such requirements should be complied with in every case, and failure to do so is ground of reversal, wherever the findings required would be of benefit to any party in the cause, or where the nature or amount of interest of the prevailing party is in issue.
5. But if the nature of a defendant's interest is not in issue, and his right of possession is equal in value to the ownership, the value of the property having been found, omission to find whether defendant was owner, or had the right of possession only, is error without prejudice. Search v. Miller, 1 N. W. 975, 9 Neb. 26, disapproved to this extent.
6. A partner cannot apply partnership property to the payment of his individual liability without the consent of his copartner.
7. A deposition regularly taken and filed in a cause, not used by the party taking it, may be offered and read by the other party, whether he participated in taking it or not.
Commissioners' opinion. Department No. 2. Error to district court, Hamilton county; Bates, Judge.
Action by Valentine Ulrich against A. I. McConaughey and others. Judgment for defendants, and plaintiff brings error. Reversed.
W. H. Thompson, for plaintiff in error.
Hainer & Smith, for defendants in error.
This proceeding is brought to review a judgment for the defendant in an action of replevin. The facts, so far as material to the questions of law involved, may be stated best in connection with the several assignments of error to which they relate.
The first point urged is that since the answer is a general denial, and the usual prayer for the alternative judgment for return of the property or for its value is omitted, no judgment could be rendered in favor of the defendant further than one for his costs. At first sight this position seems warranted by the authorities. Thus, a recent work says, in accordance with the text-books generally: “The weight of authority requires the defendant in his answer to make a special claim of property and a demand for its return; otherwise there will not be a judgment for return of the property to defendant.” 18 Enc. Pl. & Prac. 558, citing Pico v. Pico, 56 Cal. 453;Chandler v. Lincoln, 52 Ill. 74;Bartlett v. Brickett, 98 Mass. 521;Hinchman v. Doak, 48 Mich. 168, 12 N. W. 39;Young v. Glascock, 79 Mo. 574; Lumbering Co. v. Hall, 10 Or. 202; Gallagher v. Bishop, 15 Wis. 303. Examination of these authorities, however, and of the statutes or adjudications determining the practice in replevin in the several jurisdictions referred to, readily demonstrates that they have no application in this state. In some of these jurisdictions the common-law pleading obtains, under which system plea of non cepit or of non detinet does not entitle a defendant to return of the property. Chandler v. Lincoln, 52 Ill. 74; Shinn, Repl. §§ 671, 672. In others the defendant is required to elect whether to claim a return or judgment for the value. Tuckwood v. Hanthorn, 67 Wis. 326, 30 N. W. 705;Wooldridge v. Quinn, 70 Mo. 370; Shinn, Repl. § 682. In the remainder there are express statutory requirements rendering prayer for or claim of return necessary. Code Civ. Proc. Cal. §§ 627, 667; Code Civ. Proc. Or. § 259. The section last quoted expressly provides that the alternative judgment shall be rendered “if the property has been delivered to the plaintiff, and the defendant claim a return thereof,” and Lumbering Co. v. Hall, supra, is decided upon that section. In Pico v. Pico, supra, the court, speaking of the California statute, says that “it is arbitrarily made the duty of defendant to assert his formal claim for return as a prerequisite to a judgment for the return of the property or its value.” No such requirement is to be found in our statutes. Nor do the common-law rules of pleading in replevin apply here. With us it is well settled that the defendant may prove anything that makes against plaintiff's claim under a general denial, whereas non cepit and non detinet at common law admit property in the plaintiff. Shinn, Repl. §§ 671, 672. The provisions of our Code are clear and express to the effect that the alternative judgment is to be rendered “in all cases” where the property has been delivered to the plaintiff and there is a verdict for defendant. Code Civ. Proc. §§ 191, 191a. In view of this express provision, and the obvious distinction to be noted as to the cases which would at first indicate a contrary conclusion, we think that no claim or prayer is necessary, over and above a general denial, to entitle a successful defendant, from whom property has been taken and delivered to a plaintiff, to a judgment for return or value of the property or of his interest therein. A like conclusion was reached in Lavelle v. Lowry, 5 Mont. 498, 6 Pac. 337.
Exception is taken to the judgment because it is not in the alternative form prescribed by section 191a, Code Civ. Proc., but is a money judgment for the value of the property only. It appears by the bill of exceptions that during the trial the parties stipulated in open court that “the property since being replevined in this case has been disposed of by the plaintiff, and cannot be returned.” In Lee v. Hastings, 13 Neb. 508, 14 N. W. 476, it seems to have been held that an alternative judgment must be rendered as directed by the statute, notwithstanding a stipulation that a return cannot be had. But this whole subject, which had been far from clear under the previous decisionsof this court, was gone over exhaustively in Selby v. McQuillan, 59 Neb. 158, 80 N. W. 504, and we think, in the light of the opinion in that case, Lee v. Hastings should not be followed. It is true in Selby v. McQuillan the judgment itself showed that the property could not be returned, while in this case, as in Lee v. Hastings, such fact appears only from the stipulation of the parties. Nevertheless, the reason and principle of Selby v. McQuillan clearly apply. As Sullivan, J., aptly says in that case: This is true whether the facts which operate to make the alternative judgment nugatory appear in the judgment itself or elsewhere in the record. A plaintiff in replevin who, by his own admission in open court, has disposed of the property delivered to him, and is not able to return it, ought not to be heard to complain that the judgment does not allow him to make a return which he has admitted to be beyond his power.
Error is also assigned with respect to the form of the verdict and the instruction of the court by which it was prescribed. The instruction was as follows: “If you find from the evidence for the defendant, it is admitted that the value of the corn in controversy is $591.36, interest $254.58, total $845.94, and you should return a verdict for the defendant for said sum of $845.94.” The verdict, following the instruction, was in this form: “We, the jury in the above-entitled case, do find for the defendant, and assess the amount of his recovery at the sum of $845.94.” Both the instruction and the verdict were excepted to, and they are manifestly contrary to section 191, Code Civ. Proc., which requires that in all cases where the property has been delivered to the plaintiff, and the jury find for the defendant, the jury also find whether at the commencement of the action the defendant had the right of property, or the right of possession only, and assess his damages. The stipulation of the parties, referred to in the instruction quoted, fixes the value of the property at $591.36; and the interest thereon, computed by the court and directed to be found as a part of the value, would, in strictness, be the damages for withholding the property. The attention of the trial court was called to these errors in the form of verdict it was prescribing at the time. But the view seems to have been taken that, by reason of the stipulation that the property could not be returned, the action had become, in effect, an action of trover, and that the verdict should be framed accordingly. This position finds some support in Romberg v. Hughes, 18 Neb. 579, 26 N. W. 351, and in those jurisdictions where the defendant must elect whether to claim return or to take judgment for the value of the property. But we have had occasion to review this subject in Schrandt v. Young, 61 Neb. ___, 86 N. W. 1085, recently decided, and have held that, under the provisions of the statutes of this state, the nature of the action is not changed by inability of plaintiff to make a return. The cases cited by defendant in the case at bar are all of a different nature. Where the plaintiff fails to give the required undertaking, the Code provides that the...
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