25-10,103. Verdict for defendant; further findings required; damages.

In all cases, when the property has been delivered to the plaintiff, where the jury shall find upon issue joined for the defendant, they shall also find whether the defendant had the right of property or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall assess such damages as they think right and proper for the defendant; for which with costs of suit, the court shall render judgment for the defendant.

Source

Annotations

1. Right of property

2. Right of possession

3. Damages

4. Miscellaneous

1. Right of property

Facts necessary to entitle plaintiff to recover in replevin action must exist at time action is commenced. Alliance Loan & Inv. Co. v. Morgan, 154 Neb. 745, 49 N.W.2d 593 (1951).

Section is mandatory; court must determine rights as they existed at time action was commenced. Brown v. Hogan, 49 Neb. 746, 69 N.W. 100 (1896).

Where verdict and judgment are silent as to ownership of property, question remains unadjudicated. Fuller v. Brownell, 48 Neb. 145, 67 N.W. 6 (1896).

Finding of general value is unnecessary where defendant claimed special interest only. Earle v. Burch, 21 Neb. 702, 33 N.W. 254 (1887).

2. Right of possession

Failure of plaintiff to prosecute action cannot deprive defendant of right to have the right to possession of the property determined. Rice v. McGrath, 162 Neb. 511, 76 N.W.2d 428 (1956).

Where defendant's right of possession arose by virtue of a lien for truck repairs, judgment should provide for return of property or value of possession. Jackson v. Arndt-Snyder Motor Co., 122 Neb. 276, 240 N.W. 279 (1932).

Where defendant is entitled to possession only, value of same and not of property should be assessed. Tyson v. Bryan, 84 Neb. 202, 120 N.W. 940 (1909).

Failure to find right to possession does not render judgment void. Ayres v. Duggan, 57 Neb. 750, 78 N.W. 296 (1899).

Failure to find value of defendant's right of possession is not an error of which plaintiff can complain. Jameson v. Kent, 42 Neb. 412, 60 N.W. 879 (1894).

Under chattel mortgage, value of possession is amount of lien not exceeding value of property. Cruts v. Wray, 19 Neb. 581, 27 N.W. 634 (1886).

Under execution, value of right of possession is amount of execution and costs. Welton v. Beltezore, 17 Neb. 399, 23 N.W. 1 (1885).

Right to possession entitles defendant to nominal damages at least. Frey v. Drahos, 7 Neb. 194 (1878).

3. Damages

Where there is a wrongful taking in replevin of property held by sheriff under attachment, measure of damages is sale value at time, considering manner in which officer could have sold same. Merchants' Nat. Bank of Omaha v. McDonald, 63 Neb. 363, 88 N.W. 492 (1901), rehearing denied, 63 Neb. 377, 89 N.W. 770 (1902).

Measure of damages for detention of property is the value of the use, where in excess of interest. Schrandt v. Young, 62 Neb. 254, 86 N.W. 1085 (1901).

Party must recover all damages for unlawful detention in replevin actions. Teel v. Miles, 51 Neb. 542, 71 N.W. 296 (1897).

In estimating damages to defendant, jury should be permitted to take into consideration length of time intervening between levy and restoration to possession. Schars v. Barnd, 27 Neb. 94, 42 N.W. 906 (1889).

Where property is ordered returned to defendant, and plaintiff, pending appeal, again converts property by lien and sale, the conversion may be shown as a means of estimating damages. Deck v. Smith, 12 Neb. 389, 11 N.W. 852 (1882).

Measure of damages is amount of writ where value of goods exceeds that sum. Kersenbrock v. Martin, 12 Neb. 374, 11 N.W. 462 (1882).

4. 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).

Verdict for defendant in replevin case is basis for entry of judgment in alternative. Clark v. Oldham, 166 Neb. 672, 90 N.W.2d 329 (1958).

When property is not returned in reasonable time, and depreciates, defendant may refuse same and sue for value, costs and interest. Wallace v. Cox, 92 Neb. 354, 138 N.W. 578 (1912).

General finding for defendant, without finding as to value, is error. Foss v. Marr, 40 Neb. 559, 59 N.W. 122 (1894).

Section is mandatory, whether defendant pleads general denial, new matter, or prays for damages. School Dist. No. 2 of Merrick County v. Shoemaker, 5 Neb. 36 (1876).

Defendant may recover judgment for return, under general denial without prayer for return. Voorheis, Miller & Co. v. Leisure, 1 Neb. Unof. 601, 95 N.W. 676 (1901).