Wilson v. City Nat. Bank of Kearney

• Decision Date: 17 March 1897
• Citation: 51 Neb. 87,70 N.W. 501
• Parties: WILSON, SHERIFF, v. CITY NAT. BANK OF KEARNEY.
• Court: Nebraska Supreme Court

51 Neb. 87

70 N.W. 501

WILSON, SHERIFF,

v.CITY NAT. BANK OF KEARNEY.

Supreme Court of Nebraska.

March 17, 1897.

Syllabus by the Court.

1. Within the meaning of section 314 of the Code of Civil Procedure, a judgment is contrary to law when the finding on which it is based is not responsive to the issues made by the pleadings.

2. A plaintiff in replevin alleged in his petition that he was the owner and entitled to the immediate possession of the property. The answer was a general denial. All the plaintiff's evidence tended to show that he had a special interest in or lien upon the property replevined, and the court so found. Held: (1) That the evidence was irrelevant under the issues; (2) that the finding did not respond to the issues; (3) that the judgment based on such finding was contrary to law.

Error to district court, Buffalo county; Holcomb, Judge.

Action by the City National Bank of Kearney against John Wilson, sheriff. Judgment for plaintiff. Defendant brings error. Reversed.

Marston & Nevins, for plaintiff in error.

Calkins & Pratt, for defendant in error.

RAGAN, C.

From the record before us, we gather the material facts of this case as follows: W. L. Cook was engaged in mercantile business in the city of Kearney, and, to secure a debt he owed to the City National Bank of that city (hereinafter called the “bank”); he executed and delivered to it a chattel mortgage upon his stock of merchandise. This mortgage the bank did not file for record. Some months after this, he made a bill of sale of his stock of merchandise to a man named Shur, and put him in possession. Soon after this, Shur surrendered the stock of merchandise to the bank, and it took possession, and held possession of the stock, by virtue of its mortgage thereon. Creditors of Cook attached the stock, and the bank brought an action in replevin, alleging that it was the owner and entitled to the possession of the stock of merchandise. The sheriff from whom the stock of goods was replevined answered by a general denial. The court, to which the case was tried without a jury, found that at the commencement of the action the bank had a special ownership in, and was entitled to possession of, the replevined property. To reverse the judgment rendered on this finding, the sheriff prosecutes here a petition in error.

We have looked in vain for some ground on which to affirm this judgment. The finding made by the district court was not responsive to the issue made by the pleadings, and the judgment pronounced on that finding the pleadings do not support. It was said on the argument of the case by counsel for the bank that the plaintiff in error did not make the point on the trial of the case that the mortgage from Cook to the bank was irrelevant evidence under the issues, and therefore he should not be heard to urge that point here for the first time. But the bill of exceptions does not disclose that the bank offered or put in evidence on the trial of this case the mortgage made to it by Cook. The mortgage is not in the bill of exceptions, though frequently mentioned. The record shows that the bill of sale from Cook to Shur was offered in evidence, but it is not in the bill of exceptions, and there is no evidence whatever to show that the bank claimed to be the owner of...