25-10,102. Judgment against plaintiff upon dismissal; failure of plaintiff to prosecute; procedure.

If the property has been delivered to the plaintiff, and he suffers a voluntary or involuntary dismissal, or if he otherwise fails to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, impanel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury shall be satisfied that said property was the property of the defendant at the commencement of the action, or if they shall find that the defendant was entitled to the possession only of the same at such time, then, and in either case, they shall assess such damages for the defendant as are right and proper; for which, with costs of suit, the court shall render judgment for the defendant.

Source

Annotations

1. Failure to prosecute

2. Burden of proof

3. Miscellaneous

1. Failure to prosecute

Upon failure of plaintiff to prosecute appeal, defendant has right to have title to and right of possession of property adjudicated. Rice v. McGrath, 162 Neb. 511, 76 N.W.2d 428 (1956).

Failing to prosecute by refusing to amend, defendant is entitled to judgment and trial to assess damages. Pennington County Bank v. Bauman, 87 Neb. 25, 126 N.W. 654 (1910).

2. Burden of proof

Burden rests on plaintiff in replevin to establish facts necessary to recover. Alliance Loan & Inv. Co. v. Morgan, 154 Neb. 745, 49 N.W.2d 593 (1951).

Party cannot be substituted for plaintiff. Meyer v. Omaha Furniture & Carpet Co., 76 Neb. 405, 107 N.W. 767 (1906).

3. Miscellaneous

An action in replevin is properly triable to a jury. First State Bank of Scottsbluff v. Bear, 172 Neb. 504, 110 N.W.2d 83 (1961).

Where action is dismissed for want of jurisdiction, judgment for return of property or value cannot be given. Reid, Murdoch & Co. v. Panska, 56 Neb. 195, 78 N.W. 534 (1898).

Plaintiff cannot dismiss and defeat defendant's right to possession, without trial. Vose v. Muller, 48 Neb. 602, 67 N.W. 598 (1896).

Defendant is entitled to judgment, unless plaintiff proves title. Garber v. Palmer, Blanchard & Co., 47 Neb. 699, 66 N.W. 656 (1896).

Requirement that judgment be in the alternative is mandatory. Singer Mfg. Co. v. Dunham, 33 Neb. 686, 50 N.W. 1122 (1892).

Plaintiff may not dismiss without prejudice. Aultman & Co. v. Reams, 9 Neb. 487, 4 N.W. 81 (1880).

Plaintiff cannot dismiss to escape liability to defendant. Cook v. Vaughn, 1 Neb. Unof. 244, 95 N.W. 333 (1901).