Racine-Sattley Co. v. Meinen

112 N.W. 321, 79 Neb. 32, 1907 Neb. LEXIS 306

Opinions

Oldham, C.

This was an action in replevin instituted by the plaintiff Raeine-Sattley Company in the district court for Thayer county, Nebraska, for the recovery of the possession of certain specific agricultural implements described in the petition. The petition alleged that the plaintiff was the owner of the property described under a contract of conditional sale with one John Meinen, and a copy of the contract was attached to the petition. It further alleged “that defendants wrongfully detained said goods and chattels from the possession of the plaintiff, and have detained same for four days, to plaintiff’s damage in the sum of twenty-five ($25) dollars.” The petition was sworn to by the attorney for the plaintiff company in the following language: “That he has read the foregoing petition, and that the facts and allegations therein are, as he believes, true.” Defendants answered with a general denial. A jury was waived, trial had to the court, and judgment rendered dismissing plaintiff’s petition, and finding for the defendants for a return of the goods with one cent damages, and costs. To reverse this judgment the plaintiff has appealed to this court.

The following opinion on rehearing was filed January 9,1908. Former judgment of affirmance vacated and judgment of district court reversed: 1. Replevin: Affidavit. It is not essential to the maintenance of an action of replevin instituted in the district court that any affidavit of replevin as contemplated by section 182 of the code should be filed, nor that the facts required to be set forth in the affidavit under the fourth subdivision of section 182 should be embodied in the petition. It is necessary to set forth the facts required by the fourth subdivision of the code in an affidavit or in the petition only when an order of delivery is desired by the .plaintiff. 2. Contract examined, and held to be one of conditional sale. 3. Sale: Mortgagee op Vendee. The mortgagee of a conditional vendee of personal property is not a purchaser within the meaning of section 26, ch. 32, Comp. St. 1907, and cannot by his mortgage acquire any rights superior to the conditional vendor, even if the contract of conditional sale is not filed as required by said section.

There is no affidavit for replevin in the record, and, as the petition is not positively verified and omits all the allegations required in the fourth subdivision of section 182 of the code, the petition, ■ under the recent holding of this court in Case Threshing Machine Co. v. Rosso, 78 Neb. 184, is wholly insufficient to sustain a judgment in plaintiff’s favor.

We therefore recommend that the judgment of the district court be affirmed.

Ames and Epperson, CC., concur.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is

Affirmed.