Waldron v. McBride

112 N.W. 619, 79 Neb. 429, 1907 Neb. LEXIS 367

• Court: Nebraska Supreme Court
• Decided: June 22, 1907
• Docket: No. 14,871
• Status: Published

Opinion

Ames, 0.

McBride, as sheriff, levied an execution upon certain chattel property in possession of the judgment debtor Waldron. The latter began this action in replevin ‘to recover possession of the property, alleged to be of the value of $1,200. The sheriff answered, admitting the taking of the property and its alleged value, but justifying under the execution and' judgment. Reiter intervened, alleging that he was the absolute owner of an undivided one-third of the chattels taken, and that he had a special property in the remaining undivided two-thirds by reason of a chattel mortgage, a copy of which was annexed to and made a part of his petition, and that the same was given to secure a bona fide indebtedness of $733, which at the beginning of the action was wholly due and unpaid, and praying a judgment protecting his interest. No answer or reply to the petition in intervention was filed by either of the original parties to the suit. There was a trial before the court and a jury, resulting in a verdict and judgment awarding all the property to the intervener, from which the sheriff appealed.

Upon the appeal it is expressly admitted by counsel, as we understand their brief and argument, that the intervener was proven to be the absolute owner of an undivided one-third of the chattels as he had alleged, and it is not denied that he was also proven to have been the owner at the time of the trial of a valid and subsisting mortgage lien upon the remaining two-thirds thereof for the sum of $754.44, which exceeded their value; but it is complained that the court erred in instructing a verdict for the intervener, as it did, and that the verdict is erroneous as respects the mortgage lien, because the petition of intervention alleges that the intervener was by virtue of his instrument an owner of a special property in, and entitled to the immediate possession of, an undivided two-thirds of the chattels in controversy at and before the time of the beginning of the action, and omits to allege specifically he remained so at the time of the filing of the petition. The objection was not specifically made in the court below, although there was a general demurrer ore tenus, and it seems to us to be somewhat too technical to he at present upheld. The flaw in the pleading, if it be one, seems to have been due to inadvertence or a slip of the pen, and to have been "treated by the trial court and jury, as well as by counsel, as a sufficient allegation of a present" subsisting interest or lien; and, there being nothing lacking or complained of in the evidence, we think the case falls within the provisions of section 145 of the code, which requires the court, in every stage of an action, to disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the adverse party. The variance does not, in the language of section 138 of the code, appear to “have actually misled the adverse party to his prejudice,” and ought not to be permitted to be availed of to prolong for no useful purpose a litigation that has already reached a correct result.

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

Jackson and Calkins, CC., concur.

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

Affirmed.