Williams v. Eikenbury

• Decision Date: 18 October 1887
• Citation: 22 Neb. 210,34 N.W. 373
• Parties: WILLIAMS v. EIKENBURY.
• Court: Nebraska Supreme Court

22 Neb. 210

34 N.W. 373

WILLIAMS

v.EIKENBURY.

Supreme Court of Nebraska.

October 18, 1887.

Syllabus by the Court.

Where, in an action of replevin, judgment in the alternative form is rendered against the plaintiff, and, on execution being issued, he points out to the coroner having the execution the property in dispute, with the request that he accept the return of the property in accordance with the judgment, which order the coroner, by direction of the defendant's attorney, refuses, and by the order of such attorney returns the execution not satisfied for want of property whereon to levy; and plaintiff files with the clerk of the court in which the judgment was rendered an offer to return the property, and which offer is accepted upon the condition that all the property is returned by plaintiff to defendant, but the offer is attempted to be withdrawn soon after the filing of the acceptance,--it was held, upon a plea in abatement to proceedings in error prosecuted in the supreme court by plaintiff, that the filing of the offer and of the conditional acceptance did not constitute a waiver of errors by plaintiff, nor satisfy the judgment, the conditions of the acceptance not being agreed to.

Where an officer attaches property which is subsequently replevied from him by a stranger, who claims title and the right to its possession, and such officer seeks to justify his possession under his attachment process, it is incumbent upon him to prove his authority by the order of attachment, in order to show his right to possession and the measure of his damages, if successful in the suit.

In an action of replevin against a sheriff who had levied upon the property in controversy, the sheriff, by his answer to the plaintiff's petition, denied generally the allegations of the petition, and also pleaded affirmatively his official character, and justified the seizure under an order of attachment, alleging the ownership of the property to be in the attachment defendant. It was held that the defenses were not inconsistent, and that the decision of the trial court, in overruling a motion to require defendant to elect upon which of the defenses set up in his answer he would proceed to trial, was correct.

Special findings of a jury must be consistent with each other upon material questions, and inconsistent with the general verdict, before a trial court will be justified in rendering judgment upon them rather than upon the general verdict.

Error from district court, Cass county; CHAPMAN, Judge.

J. H. Haldeman and Beeson & Sullivan, for plaintiff.

E. H. Wooley, H. D. Travis, and Conell & Polk, for defendant.

REESE, J.

This is a petition in error by which it is sought to reverse the judgment of the district court of Cass county in an action in replevin wherein plaintiff in error here was plaintiff, and defendant in error was defendant. Judgment being in favor of defendant in the action, plaintiff seeks review.

The first question requiring notice is a plea in abatement filed in this court by defendant in error, by which he seeks to show that all errors which may appear in the record, if any should so appear, have been waived by plaintiff in error by an offer made by him to return the property to defendant, after judgment and after execution issued. From the record before us, it appears that the judgment was in the statutory alternative form for a return of the property, or for its value in case a return could not be had. Section 191, Civil Code. This judgment was rendered on the fourth day of February, 1887. On the fourth day of the following March, an execution was issued commanding the sheriff to cause to be made the sum $1,739.70, together with the costs of suit. Whether or not this execution should have followed the judgment, in form, requiring the return of the property, “or the value thereof in case a return cannot be had,” as expressed in the section of the Code above referred to, is not before us.

On the eleventh day of March, plaintiff in error filed in the office of the clerk of the district court a written offer of which the following is a copy, omitting the title of the cause, signature, and other formal parts: “The plaintiff hereby returns to the defendant the property in controversy in this action, as per the judgment for the return thereof; said property, lumber, building material, still at the same place in Manly, Nebraska, where it was when taken by plaintiff on writ of replevin issued herein.” On the thirteenth of March this execution was returned, “No property found on which to levy,” “except the plaintiff's lumber-yard, which was of the value of about $1,200, and upon which defendant requested no levy to be made, and ordered return of this writ.”

On the twenty-eighth day of April, at 8 o'clock in the morning, defendant filed in the office of the clerk of said court the following: “Comes now the defendant in this cause, and hereby accepts the offer made and filed in this cause by the plaintiff to return the property replevied in this cause, in case the plaintiff has all the property so replevied herein, and in case all of the property so replevied is returned by the plaintiff to the defendant.” On the same day, but 10 minutes later, (8:10 A. M.,) plaintiff filed an affidavit withdrawing the offer. The motion for leave to withdraw the offer was overruled by the district court.

It is now urged that the offer, the acceptance, and ruling of the lower court upon the motion to withdraw, must be treated as an end to the case; that the accepted offer to comply with the judgment is a waiver of errors, if any exist; and the cause cannot now be reviewed on its merits. As is shown by the return of the officer, he was ordered to return the execution without molesting the lumber-yard,--the property in dispute; and by an affidavit it is shown that, when the coroner appeared at the residence of plaintiff with the execution, accompanied by defendant's attorney, plaintiff pointed out the replevied property, and requested that the coroner take the same, but that defendant's attorney refused to permit the officer to do so, and insisted upon collecting the judgment for money.

We do not think it necessary to inquire further into the effect of these proceedings than is necessary to ascertain the effect of the offer and acceptance as shown by the papers filed with the clerk of the district court. In this inquiry we may assume--but not decide--that the offer, if accepted, would have the effect of satisfying the judgment. But that is not the case at bar. The acceptance is clearly based upon the condition that plaintiff should have “all the property so replevined,” and that “all the property so replevined is returned by plaintiff to defendant.”

The property in dispute is “a certain lot of lumber and posts, building material,...