25-10,104. Judgment for defendant; irregularity in process or jurisdictional defect; restoration of status quo.

(1) The judgment in the cases mentioned in sections 25-10,102 and 25-10,103 shall be for a return of the property or the value thereof in case a return cannot be had, or the value of the possession of the same, and for damages for withholding said property and costs of suit.

(2) In all instances wherein a trial of the merits of an action is prevented by reason of irregularity in process or for any jurisdictional reason, the court upon a proper showing shall be empowered to place the parties in status quo by ordering a return of the property replevied. A defendant whose property has been replevied shall be entitled to seek such relief without submitting his person to the jurisdiction of the court.

Source

Annotations

1. Return of property or value thereof

2. Value of possession

3. Damages

4. Miscellaneous

1. Return of property or value thereof

Property which cannot be returned in a replevin action is to be valued as of time of trial. Community Credit Co. v. Gillham, 191 Neb. 198, 214 N.W.2d 384 (1974).

Where plaintiff did not identify replevied cows to contract of purchase, judgment was reversed and remanded with directions to order return of cows to defendant and determine his damages. Putnam Ranches, Inc. v. Corkle, 189 Neb. 533, 203 N.W.2d 502 (1973).

Judgment that "defendant recover property replevined, or the sum of seven hundred ninety-four dollars and further sum of thirty-nine dollars and ninety-nine cents as damages," is in thereof in case a return cannot be had. Clark v. Oldham, 166 Neb. 672, 90 N.W.2d 329 (1958).

Judgment for return of property only was erroneous. Rice v. McGrath, 162 Neb. 511, 76 N.W.2d 428 (1956).

The alternative money judgment affords a measure of relief only when the property cannot be returned. Barstow v. Wolff, 148 Neb. 14, 26 N.W.2d 390 (1947).

Where verdict in replevin is for defendant, judgment should be entered in the alternative for the return of the property or its value if it cannot be returned and damages for detention. Landis Machine Co. v. Omaha Merchants Transfer Co., 142 Neb. 397, 9 N.W.2d 198 (1943).

Where property has been taken under writ of replevin and delivered to plaintiff and verdict is in favor of defendant, judgment must be in alternative for return of property or for its value, or for value of defendant's possession if it cannot be returned, and for damages for illegal detention. Securities Inv. Corp. v. Krejci, 128 Neb. 763, 260 N.W. 396 (1935).

"Value thereof" is instead of return, when return cannot be made, and is equivalent of the property as it was at time of trial. If judgment is affirmed on appeal and property returned to defendant pursuant thereto, he cannot recover on appeal bond for damages occurring prior to original judgment. Wallace v. Cox, 100 Neb. 601, 160 N.W. 992 (1916).

Judgment for defendant in replevin case must be in the alternative for a return of the property or the value thereof. Sullivan v. Hansen, 95 Neb. 779, 146 N.W. 983 (1914); Jameson v. Kent, 42 Neb. 412, 60 N.W. 879 (1894).

Judgment for return of property is unnecessary where evidence shows property cannot be returned. Ulrich v. McConaughey, 63 Neb. 10, 88 N.W. 150 (1901).

Election to return or pay value is left practically to plaintiff. Schrandt v. Young, 62 Neb. 254, 86 N.W. 1085 (1901).

Judgment where verdict does not fix value of property is erroneous. Brownell & Co. v. Fuller, 57 Neb. 368, 77 N.W. 775 (1899).

Section is mandatory; judgment must be in the alternative. Martin v. Foltz, 54 Neb. 162, 74 N.W. 418 (1898).

Where verdict does not find value of property, no judgment can be entered. Goodwin v. Potter, 40 Neb. 553, 58 N.W. 1128 (1894).

County judge cannot commit for contempt of district court. Johnson v. Bouton, 35 Neb. 898, 53 N.W. 995 (1892).

Provision for form of judgment is for benefit of plaintiff as well as defendant. Manker v. Sine, 35 Neb. 746, 53 N.W. 734 (1892).

Where plaintiff made tender of chattels at place replevined, collection of money judgment could be enjoined. Reavis v. Horner, 11 Neb. 479, 9 N.W. 643 (1881).

Before plaintiff can complain of omission he must show that property can be returned. Goodman v. Kennedy, 10 Neb. 270, 4 N.W. 987 (1880).

Doubts should be resolved against remedy by injunction. Stone v. Snell, 4 Neb. Unof. 430, 94 N.W. 525 (1903).

If there is no alternative judgment for value, and property cannot be returned, plaintiff cannot complain of the alternative. Skow v. Locke, 3 Neb. Unof. 176, 91 N.W. 204 (1902).

2. Value of possession

Where judgment is for right of possession only, judgment amount should be value of such possession in case a return of property cannot be had, together with damages for withholding property, and costs. Jackson v. Arndt-Snyder Motor Co., 122 Neb. 276, 240 N.W. 279 (1932).

Verdict for defendant claiming under lien, failing to find value of possession, is erroneous. Creighton v. Haythorn, 49 Neb. 526, 68 N.W. 934 (1896).

3. Damages

Damages for depreciation in value of property may only be recovered if property is returned. Alliance Loan & Inv. Co. v. Morgan, 154 Neb. 745, 49 N.W.2d 593 (1951).

Plaintiff cannot complain that judgment for defendant was rendered only for damages for withholding property. Scott v. Burrill, 44 Neb. 755, 62 N.W. 1093 (1895).

Where verdict is silent on amount of damages, courts cannot render judgment therefor. Search v. Miller, 9 Neb. 26, 1 N.W. 975 (1879).

Where action proceeds as one for damages, it is not necessary for judgment to provide for return of property. McCarty v. Morgan, 2 Neb. Unof. 274, 96 N.W. 489 (1902).

4. Miscellaneous

Verdict held sufficient. Heffley v. Hunger, 54 Neb. 776, 75 N.W. 53 (1898).

Case will be remanded to have proper judgment entered on verdict. Roberson v. Reiter, 38 Neb. 198, 56 N.W. 877 (1893).