Noryal, C. J.
This is the third appearance of this case in this court. The former decisions are reported in Fines v. Bolin, 36 Nebr., 621, and in Bolin v. Fines, 51 Nebr., 650. The action was instituted before a justice of the peace by John W. Fines to recover possession of a quantity of corn which he claimed under and by virtue of a chattel mortgage executed by one Oscar Hewitt. A trial before the justice resulted in a judgment in favor of plaintiff, from which Bolin appealed to the district court, where judgment was rendered in his favor. In error proceeding prosecuted to this court said judgment was reversed, and the cause remanded for further proceedings. 36 Nebr., 621. After said reversal, and the lodging of the mandate in the district court, the defendant filed a motion therein to quash the replevin writ because of the insufficiency of the affidavit on which the same was issued. This motion was overruled, and the second trial in the district court resulted in a judgment in favor of plaintiff, which, on appeal to this court, was reversed and the action dismissed on the ground that the affidavit in replevin was so defective in substance as to not confer jurisdiction to issue the replevin writ. Subsequently, on motion of defendant, a modification was entered by this court remanding the cause to the district court with direction to dismiss the action and proceed in accordance with the provisions of section 1041 of the Code of Civil Procedure. [445] Pursuant to the mandate, the court below sustained the motion to quash the replevin wait and dismissed plaintiff’s cause of action, and a trial of the defendant’s right of property and right of possession was had. The court rendered judgment against the defendant on the following special findings:.
“1st. I find that the corn in dispute was turned over to the defendant, Tucker Bolin, by one Oscar Dewitt for the purpose of satisfying plaintiff’s mortgage, and to preserve it from Dewitt’s other creditors, and that the defendant gave no consideration for the com, but held it for the purpose of satisfying the said mortgage only, and had no right to the corn, either of ownership or possession, adverse to the plaintiff.
“2nd. I find the value of the corn when taken under the writ to have been $165.00.
“3rd. I find the value of the said mortgage and the note secured thereby upon the corn when the corn was taken to have been $168, and that the same was due and unpaid and was due when the writ of replevin in this case was issued.
“4th. I find that the defendant has suffered no damage by reason of the taking of the said com.”
The record before us discloses that while the action was dismissed for want of jurisdiction, yet the cause was litigated as fully by each party as though no order of dismissal had been entered, each producing his proofs, and that plaintiff, over objection of defendant, was allowed to place in evidence the note and chattel mortgage under which he claimed the right of possession of the property, and was likewise allowed to introduce testimony conducing to show that the bill of sale under which defendant asserted ownership and possession was executed by the mortgagor, Oscar Dewitt, for the purpose of defrauding his creditors. The reception of this testimony is now assigned for error. But the ruling assailed is not sufficient ground for a reversal, since the cause was tried without the assistance of a jury, and the principle [446] is a familiar one, that the admission of incompetent and improper evidence, in a cause tried to the court without the intervention of a jury, is not cause for reversal. Stover v. Hough, 47 Nebr., 789; Stabler v. Gund, 35 Nebr., 648; Whipple v. Fowler, 41 Nebr., 675; Tolerton v. McLure, 45 Nebr., 368; Sharmer v. McIntosh, 43 Nebr., 509. The reason for the rule is that no prejudice could result from the admission of the testimony, since the court, when it comes to render judgment, is presumed to reject and disregard all incompetent and improper proofs, and must predicate or ground its decision upon the material and pertinent evidence adduced. The findings and judgment under review are abundantly supported by the proofs if the evidence introduced by the plaintiff was proper to be considered, but are wholly unsupported if the testimony on behalf of the defendant alone should be considered and weighed. The question is squarely presented whether the plaintiff had the right to introduce any evidence on the further hearing of the cause as to the defendant’s right of property and right of possession to' the chattels seized under the writ.
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Noryal, C. J.
This is the third appearance of this case in this court. The former decisions are reported in Fines v. Bolin, 36 Nebr., 621, and in Bolin v. Fines, 51 Nebr., 650. The action was instituted before a justice of the peace by John W. Fines to recover possession of a quantity of corn which he claimed under and by virtue of a chattel mortgage executed by one Oscar Hewitt. A trial before the justice resulted in a judgment in favor of plaintiff, from which Bolin appealed to the district court, where judgment was rendered in his favor. In error proceeding prosecuted to this court said judgment was reversed, and the cause remanded for further proceedings. 36 Nebr., 621. After said reversal, and the lodging of the mandate in the district court, the defendant filed a motion therein to quash the replevin writ because of the insufficiency of the affidavit on which the same was issued. This motion was overruled, and the second trial in the district court resulted in a judgment in favor of plaintiff, which, on appeal to this court, was reversed and the action dismissed on the ground that the affidavit in replevin was so defective in substance as to not confer jurisdiction to issue the replevin writ. Subsequently, on motion of defendant, a modification was entered by this court remanding the cause to the district court with direction to dismiss the action and proceed in accordance with the provisions of section 1041 of the Code of Civil Procedure. [445] Pursuant to the mandate, the court below sustained the motion to quash the replevin wait and dismissed plaintiff’s cause of action, and a trial of the defendant’s right of property and right of possession was had. The court rendered judgment against the defendant on the following special findings:.
“1st. I find that the corn in dispute was turned over to the defendant, Tucker Bolin, by one Oscar Dewitt for the purpose of satisfying plaintiff’s mortgage, and to preserve it from Dewitt’s other creditors, and that the defendant gave no consideration for the com, but held it for the purpose of satisfying the said mortgage only, and had no right to the corn, either of ownership or possession, adverse to the plaintiff.
“2nd. I find the value of the corn when taken under the writ to have been $165.00.
“3rd. I find the value of the said mortgage and the note secured thereby upon the corn when the corn was taken to have been $168, and that the same was due and unpaid and was due when the writ of replevin in this case was issued.
“4th. I find that the defendant has suffered no damage by reason of the taking of the said com.”
The record before us discloses that while the action was dismissed for want of jurisdiction, yet the cause was litigated as fully by each party as though no order of dismissal had been entered, each producing his proofs, and that plaintiff, over objection of defendant, was allowed to place in evidence the note and chattel mortgage under which he claimed the right of possession of the property, and was likewise allowed to introduce testimony conducing to show that the bill of sale under which defendant asserted ownership and possession was executed by the mortgagor, Oscar Dewitt, for the purpose of defrauding his creditors. The reception of this testimony is now assigned for error. But the ruling assailed is not sufficient ground for a reversal, since the cause was tried without the assistance of a jury, and the principle [446] is a familiar one, that the admission of incompetent and improper evidence, in a cause tried to the court without the intervention of a jury, is not cause for reversal. Stover v. Hough, 47 Nebr., 789; Stabler v. Gund, 35 Nebr., 648; Whipple v. Fowler, 41 Nebr., 675; Tolerton v. McLure, 45 Nebr., 368; Sharmer v. McIntosh, 43 Nebr., 509. The reason for the rule is that no prejudice could result from the admission of the testimony, since the court, when it comes to render judgment, is presumed to reject and disregard all incompetent and improper proofs, and must predicate or ground its decision upon the material and pertinent evidence adduced. The findings and judgment under review are abundantly supported by the proofs if the evidence introduced by the plaintiff was proper to be considered, but are wholly unsupported if the testimony on behalf of the defendant alone should be considered and weighed. The question is squarely presented whether the plaintiff had the right to introduce any evidence on the further hearing of the cause as to the defendant’s right of property and right of possession to' the chattels seized under the writ.
Section 1041 of the Code of Civil Procedure, relating to replevin in justices’ courts, declares: “If the property has been delivered to the plaintiff, and judgment be rendered against him, or if he otherwise fail to prosecute his action to final judgment, the justice shall, on application of the defendant, or his attorney, impanel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury shall be satisfied that the said property was the property of the defendant at the commencement of the action, or if they shall find that the defendant was entitled only to the possession of the same, at such time, then in either case they shall assess such damages for the defendant as are right and proper, for which, with costs of suit, the court shall render judgment for the defendant,” etc. Section 191» of said Code provides, inter alia, that in the cases mentioned in said section 1041 judgment shall be [447] for a return of the property, or for its value in case a return can not be had, or the value of defendant’s possession, and for damages for withholding the property, and costs of suit.. It will be observed that these sections require the court, on application of a defendant in replevin whose property has been delivered to the plaintiff, in case judgment has been rendered against the latter, or he has failed to prosecute the suit to a final determination, to call a jury to pass upon the defendant’s right of property and right of possession at the commencement of the action, and if the jury determine either in his favor, to render judgment for a return of the property, or, in case there can be no return, for its value or the value of the possession thereof, with damages and costs. There is no provision in either section which authorizes the plaintiff in replevin, who has failed to prosecute his suit or against whom judgment has been pronounced, to litigate the defendant’s right of property and right of possession thereto. A plaintiff in replevin must maintain his case on the strength of his own title or claim, and if he fail to establish either title or right of possession in himself, it is wholly immaterial to him whether the defendant has or has not any title or right of possession. This is the universal rule. To permit a plaintiff who has failed to prosecute his replevin suit to introduce testimony to show that defendant had no title or right of possession to the property, as that the same was in a third party, to prevent an alternative judgment from being entered against the plaintiff for a return of the property seized under the writ or for its value, or for the value of the defendant’s possession, would be unjust, and would allow plaintiff to introduce testimony which would not be admissible had his suit not been dismissed and there had been a trial upon the merits. When a defendant in replevin is accorded a hearing under said section 1041 of the Code, such adjudication does not determine the merits of the cause, since the judgment rendered in his favor would not bar the plaintiff from subsequently bringing replevin for the [448] property. Cobbey, Replevin., sec. 1192, and cases cited in note. Where plaintiff’s replevin suit has been dismissed, he is no longer an actor. Swain v. Savage, 55 Nebr., 687. When the defendant in replevin invoked the proceedings provided in said section 1041, the verdict and judgment must be based upon his proofs alone. If the defendant established a prima facie right to* the property, he is entitled to an alternative judgment for the return.thereof, or its value, or the value of his possessory right. The findings of the trial court are not sustained by competent evidence; and the judgment entered thereon should be reversed.
As already stated, after the last opinion in Bolin v. Fim.es, 51 Nebr., 650, was filed, that decision was modified by this court by directing the trial court to dismiss plaintiff’s action and to take such further steps in the cause as were provided by section 1041 of the Code of Civil Procedure. This modification, in so far as it directed the district court to proceed under said section,.was improvidently entered, since, in any action like the present, where plaintiff’s suit is dismissed on motion of defendant because the writ was unauthorized and issued without jurisdiction, the latter is not entitled to have determined therein his right of posession to the chattels taken under the writ and delivered to plaintiff. State v. Letton, 56 Nebr., 158; Reid v. Panska, 56 Nebr., 195.
The judgment is, therefore, reversed, and the action dismissed.
Reversed and dismissed.