
    Samuel Garber v. Palmer, Blanchard & Company.
    Filed March 18, 1896.
    No. 6350.
    1. Replevin: Dismissal. A plaintiff in an action of replevin, who has obtained possession of the property under the writ, cannot be permitted, without the consent of the defendant, to dismiss the action.
    2. -: Right op Dependant to Trial: Damages. When a plaintiff in replevin who has obtained the property fails in his proof or fails to prosecute the action, the defendant is entitled to judgment, and to a trial of his right of property or possession, for the purpose of establishing his damages.
    Error from the district court of Webster county. Tried below before Beall, J.
    The issues are stated by the commissioner.
    
      
      James McNeny, for plaintiff in error:
    The order of the court sustaining the motion of defendant in error to dismiss this cause was erroneous. In an action of replevin both parties are actors. On the plaintiff’s failure to prosecute, the defendant becomes the real plaintiff in the action. (Aultman v. Reams, 9 Neb., 487; Moore v. Herron, 17 Neb., 697; Wilson v. Wheeler, 6 How. Pr. [N. Y.], 49; Broom v. Fox, 2 Yeates [Pa.], 530; Long v. Buckeridge, 1 Str. [Eng.], 106; Marshall v. Bunker, 40 la., 121; Wells, Replevin, 195; Jewell v. Lamereaux, 30 Mich., 155; Reed, v, Carpenter, 2 O. 79; Ahlman v. Meyer, 19 Neb., 63; Dahler v. Steele, 1 Mont., 206; Berghoff v. Heckwolf, 26 Mo., 512; Kennedy v. Beck, 15 Kan., 555; Ranney v. Thomas, 45 Mo., 112; Doioling v. Poloek, 18 Cal., 625; Mikesill v. Chaney, 6 Porter [Ind.], 52; Leese v. Sherwood, 21 Cal., 151.)
    No appearance for defendant in error.
   Irvine, C.

This was an action in replevin by Palmer, Blanchard & Co., a corporation, against Garber for 300 head of cattle alleged to be worth $8,000, and appraised at $5,000. The answer was a general denial. After each side had rested its case the plaintiff moved the court “to dismiss this action without liability to the defendant herein.” Whereupon the following order was made: “On consideration whereof the court sustains said motion, and it is hereby considered, ordered, and adjudged that said action be, and the same is hereby, dismissed at plaintiff’s costs. And it is further considered and adjudged that said plaintiff be, and he'is hereby, discharged from all liability to defendant herein. Defendant thereupon asks that the cause as to him be submitted to the jury upon the evidence and the instructions submitted to the court. On consideration whereof the court refuses to grant said application. And the court further refuses to grant any other motion or application on the part of the defendant, and refuses to make or render any other ruling, finding, or judgment save and except the above.” It appears, not from the record proper, but from the bill of exceptions, that the property had been delivered to the plaintiff under the writ.

The evidence discloses that Garber and one Higby, who was cashier of the Farmers & Merchants Banking Company of Red Cloud, made an arrangement with Palmer, Blanchard & Co., who were live stock commission men at South Omaha, whereby the Farmers & Merchants Bank issued a letter of credit in favor of Garber, on the faith of which Garber bought the cattle in controversy in New Mexico, drawing on the bank for the purchase price. The agreement was that the South Omaha National Bank should issue to the Farmers & Merchants Bank a corresponding letter of credit; that Garber should secure advances by Palmer, Blanchard & Co. by chattel mortgage; that the Farmers & Merchants Bank should, in pursuance of its letter of credit, honor Garber’s drafts for the purchase money, and that on the execution of the mortgages, drafts should be drawn, with the mortgages attached, which should be paid by Palmer, Blanchard & Co. The details of the latter part of the agreement were not made clear, nor are they material. It sufficiently appears that through some arrangement then made, Palmer, Blanchard & Co. were, upon being secured by chattel mortgages executed by Garber, to pay the advances made by the Farmers & Merchants Bank to him. When the cattle arrived in Nebraska, Garber executed two mortgages, each of which covered 150 head of cattle; one for $5,000, the cither for $2,435.17. These were delivered to the bank, together with notes representing the debt, and a draft was drawn on Palmer, Blanchard & Co. for the amount. Palmer, Blanchard & Co. refused to accept the draft, claiming that the mortgages should have covered certain hogs and corn in addition to the cattle. After Palmer, Blanchard & Co had refused to accept the draft Garber prepared to ship the cattle for sale to Kansas City, when this action was instituted. It is quite evident that officers of the bank instituted the action; but Mr. Blanchard, representing Palmer, Blanchard & Co., appeared on the scene the next morning, and joined in the replevin bond. On the trial he testified to the foregoing facts, and testified distinctly and positively that his company had refused to accept the mortgages, and that it had no interest in or claim upon the cattle. It was on this state of facts that the court, on plaintiff’s motion, dismissed the action and forbade the defendant the privilege of proving his damages. That error was committed is self-evident, but there is the difficulty in stating reasons for reversal which always attends an attempt to demonstrate an axiom. The district court may have proceeded upon the theory that section 430 of the Code gives the plaintiff in every action a right to dismiss without prejudice at any time before final submission; but this provision does not apply to actions of replevin. In replevin, where the property is delivered to the, plaintiff, he practically obtains his execution before judgment. He accomplishes the main object of his suit through the preliminary process of the court. It is sometimes said that both parties then become actors. The plaintiff has taken the property, and the burden falls upon him of establishing his right thereto; and unless he recovers on the strength of his own title, the defendant is entitled to judgment for the return of the property or for its value. He can no more abandon the case than can a defendant in an action of trover. It is true that section 190 of the Code provides that where judgment is rendered against the plaintiff on demurrer, or if the plaintiff otherwise fail to prosecute to final judgment, the court shall impanel a jury to inquire into the right of property and right of possession of the defendant; and if the jury be satisfied that either was in the defendant, they shall assess such damages as may be right and proper; but this section is enacted for the purpose of an assessment of damages, such as a plaintiff is entitled to on default in ordinary actions.- The defendant is entitled to judgment unless the plaintiff proves his own title. (St. John v. Swanback, 39 Neb., 841; Jenkins v. Mitchell, 40 Neb., 664; Kavanaugh v. Brodball, 40 Neb., 875; Peterson v. Lodwick, 44 Neb., 771; Johannson v. Miller, 45 Neb., 53.) In case the plaintiff, by failure of evidence, or by failure to prosecute his case, fails to establish such affirmative right in himself the defendant is entitled to the procedure accorded by section 190, not for the purpose of establishing his right, but for the purpose of assessing his damages. It follows from the nature of this action, and, from the feature of the plaintiff’s securing the property before he has established his right, that he cannot by a dismissal of the action avoid the necessity of making the necessary proof. He cannot by his own ex parte affidavit obtain property in the possession of another and then by dismissal leave the other party without an opportunity to’ defend his right and without a remedy. The proposition is so evident, the contrary so unjust, so absurd, and so preposterous, that neither argument nor authority should be necessary. Still the question has been several times decided by this court. (Aultman v. Reams, 9 Neb., 487; Moore v. Herron, 17 Neb., 697; Ahlman v. Meyer, 19 Neb., 63.)

The action taken by the court might have been error without prejudice had the plaintiff beyond contradiction established its right; but it did not do so. In the first place the petition stated no cause of action. It alleged a special ownership in the property without setting out the facts in relation thereto. A plaintiff in replevin claiming under a chattel mortgage must allege a special ownership and plead the facts. (Musser v. King, 40 Neb., 892; Randall v. Persons, 42 Neb., 607; Sharp v. Johnson, 44 Neb., 165; Camp v. Pollock, 45 Neb., 771; Strahle v. First Nat. Bank of Stanton, 47 Neb., 319.) In the second place, the plaintiff absolutely failed to prove ownership, general or special, or right of possession; but, on the contrary, its own evidence was that it had no claim at all, and had refused to accept the mortgages under which alone there was any pretense' of a claim. -Possibly the district court thought that the evidence showed that the suit had not been authorized by Palmer, Blanchard & Co., and that that company was not, therefore, the actual plaintiff; but such evidence as was introduced to this effect was not in support of any pleading by Palmer, Blanchard & Co. of such facts; it was not relevant under the issues, except as it might operate in favor of the defendant, and was no ground for dismissing the case without a judgment for defendant. Finally, the evidence showed that while the suit had been begun without authority, Palmer, Blanchard & Co. had certainly ratified the acts of the person commencing it. Blanchard signed the replevin bond. Several continuances were taken on Palmer, Blanchard & Co.’s motion. Palmer, Blanchard & Co. prosecuted the action so fax as it was prosecuted. It appears that after the cattle had been taken under the writ they were shipped to Palmer, Blanchard & Co. for sale. They were sold by that company and the proceeds remitted to Higby, who had assumed the indebtedness in favor of the Farmers & Merchants Bank, created by the transaction; but this merely shows that Palmer, Blanchard & Co. ratified the suit, and prosecuted it without a shadow of a claim of right, not for their own protection, but in order to protect Higby, it being explained in the evidence that this course was taken in order to prevent creditors of Garber from reaching the cattle. In brief, the transaction was in consummation of a conspiracy between Higby and Palmer, Blanchard & Co. to seize the cattle without any right thereto and without tangible claim of right, knowing they had no such right, for the purpose of in that way securing payment of a debt of Garber. An inexcusable error was committed. Possibly no party to the case has suffered greatly because the proceeds of the property were applied to the payment of a debt of Garber’s; but it is not in such a manner that a creditor can be permitted to obtain a preference.

Reversed and remanded.  