Miller v. Daly

76 N.W. 447, 55 Neb. 771, 1898 Neb. LEXIS 662

• Court: Nebraska Supreme Court
• Decided: September 23, 1898
• Docket: No. 8259
• Status: Published

Opinion

Ryan, C.

In tbe district court of Lincoln county, Emma. Daly began this action of replevin for tbe possession of certain household goods which she alleged were wrongfully detained from her by Jacob Miller, tbe sheriff of said county. After tbe property bad been appraised and an undertaking bad been given, Miller appeared specially and objected to tbe jurisdiction of tbe court in the cause on various grounds. This objection was sustained November 16,1894. On December 17, 1894, there was filed on behalf of Emma Daly a motion “To assess tbe value of tbe property wrongfully taken by plaintiff from defendant in said action, and render judgment for tbe value thereof in favor of defendant and against plaintiff, in accordance with tbe provisions of section 193n of the Civil Gode of tbe state of Nebraska.” On December 18, 1894, this motion was' sustained, and in .this connection tbe record of the district court contains tbe recitations that “Defendant waives return of property, and on bearing tbe court finds tbe value of tbe property to be $300, and. adjudges tbe damages' of tbe defendant against plaintiff to be $300, defendant to recover costs from plaintiff, to all of which findings plaintiff duly excepts.” On December 19, 1894, Emma Daly filed a motion for a rehearing in which were assigned various grounds, of which none was the same as that now presented. This motion was overruled December 20, 1894. On December 16, 1895, Jacob Miller, pursuant to a notice given a few days before, moved the court for an order as recited in the motion — “Correcting the mistake of the clerk of said court in entering up a judgment in said cause for money only, instead of in the alternative as required by section 190 of the Code.” This motion was overruled and the error assigned is this ruling of the district court.

The order originally obtained was granted, as recited in the record, upon defendant’s waiver of the return of the property replevied. Nearly a year after this order had been made upon the assent of the defendant in the district court, he appeared therein and moved for an alternative order for the return of the property, or its value, under the provisions of a section of the Code of Civil Procedure applicable where there had been a trial to a jury, and this right to a correction at so late a date he predicates upon the alleged mistake of the clerk of the couxd. There is no bill of exceptions in this case and we cannot therefore consider the matters of evidence upon which the district court reached its conclusions of fact. If there was any mistake in this matter, it certainly was not the mistake of the clerk of the court, judging from the' record upon which this case is submitted. Plaintiff in error assented to what, from the record, seems to have, been the proper order. He acquiesced in that order for nearly a year, until after the return of an execution milla lona against the defendant in error, and now asks to correct the alleged mistake as being one committed by the clerk of the court. The judgment for the simple value of the property was justified by the express waiver of the return of the property, and the correction sought is not a, clerical error, omission, or oversight. The relief sought requires to be made a radical change of the recitation of a solemn admission upon which the court acted.. Under the circumstances the district court very properly refused to sustain the motion for relief, and its ruling is therefore

Affirmed.