Howland v. Sharp

66 N.W. 1133, 48 Neb. 131, 1896 Neb. LEXIS 38

• Court: Nebraska Supreme Court
• Decided: April 21, 1896
• Docket: No. 6544
• Status: Published

Opinion

Harrison, J.

This, an action of replevin, was commenced to obtain possession of certain personal property held by John F. Boyd, as sheriff of Douglas county, under the levy of a writ of attachment issued in an action by Herman Deiss against the Western Dry House & Construction Company. The suit in which the attachment was issued was brought July 22, 1890, and the writ was levied on the same day. Judgment was rendered in the last mentioned cause, of date November 26, 1890, and tbe property was ordered sold, tbe proceeds to be applied on tbe judgment. In tbe case at bar tbe plaintiff did not furnish tbe bond required in replevin actions and tbe property was not delivered to bim, tbe cause proceeding as one for damages. During tbe pendency of tbe suit tbe sheriff died and it was revived in favor of bis administrator, Julius C. Sharp. There was a trial of tbe issues and a verdict and judgment in favor of tbe defendant. Tbe plaintiff presents tbe case here for review by error proceedings.

The argument in tbe brief filed for plaintiff in error is first directed to tbe question raised by tbe assignment of error that tbe verdict is not sustained by sufficient evidence. Tbe controversy in tbe cause was over “all brick in and about tbe brick kilns contained in tbe brick yard situated on Douglas county poor farm, said brick yards being bounded on tbe east by tbe Belt Line railway, on tbe south by Park street, and on tbe west by Ryan & Walsh’s brick yard, tbe city of Omaha.” A careful consideration and investigation of all tbe testimony presented in tbe record convinces us that tbe view of counsel that tbe verdict is not supported by tbe evidence is a correct one. It was shown that one George Hinchliff was, and bad been for several months, tbe owner and in possession of tbe property in tbe brick yard, including these bricks in tbe kilns; that be sold tbe bricks to one William Redgwick during tbe month of May, 1890, and about two months prior to tbe levy of tbe attachment in favor of Diess; that on October 26, 1890, Redgwick sold tbe bricks to tbe plaintiff, neither of them having any knowledge, at tbe time of tbe sale, of tbe existence of the attachment, its issuance, or levy. There was an effort on behalf of tbe defendant to show that tbe bricks belonged to tbe Western Dry House & Construction Company, and it was shown that Hinchliff and Redgwick bad at one time been members of, or interested in, tbe company, but there was no evidence which would sustain tbe verdict returned by tbe jury.

There are some other assignments of error in reference to the trial judge giving certain instructions, and also in refusing to give an instruction requested by plaintiff, and a further assignment in regard to the action of the judge in overruling objections to and admitting testimony, but we do not deem it necessary to discuss them now, as a determination of them is not necessary to a decision of the main question in the case, nor would it materially assist in another trial, should there be one. The judgment of the district court is reversed and the cause remanded for further proceedings.

Eeversed and remanded.