25-10,105. Judgment for plaintiff; damages; costs.

In all cases when the property has been delivered to the plaintiff, where the jury shall find for the plaintiff, on an issue joined, or on inquiry of damages upon a judgment by default, they shall assess adequate damages to the plaintiff for the illegal detention of the property; for which with costs of suit, the court shall render judgment for plaintiff.

Source

Annotations

1. Damages

2. Costs

3. Miscellaneous

1. Damages

The owner of personal property in a replevin action has the duty to mitigate damages the same as any other litigant. Ordinarily, the plaintiff in a replevin action may recover the interest on the value of the property during the period it was wrongfully detained; however, where the value of the loss of use of the property during such period exceeds the amount of such interest, then, instead of interest, the plaintiff may recover the value of the loss of use of the property. Where special damages are not shown, damages for wrongful detention are limited to the extent of interest on the value of the property during the time it was wrongfully detained. Allemang v. Kearney Farm Ctr., 251 Neb. 68, 554 N.W.2d 785 (1996).

Under this section, where a plaintiff in a replevin action recovers his property, the finder of fact must assess adequate damages to the plaintiff, including damages for loss of use of the wrongfully withheld property, if such property has value for use. Morfeld v. Bernstrauch, 216 Neb. 234, 343 N.W.2d 880 (1984).

Plaintiff entitled to damages based on the depreciated and deteriorated value of a chattel during detention, where defendant unlawfully detained a chattel in which plaintiff held a superior security interest. White Motor Credit Corp. v. Sapp Bros. Truck Plaza, Inc., 197 Neb. 421, 249 N.W.2d 489 (1977).

Where defendant has disposed of property in bad faith, plaintiff may recover damages. Singer Sewing Machine Co. v. Robertson, 87 Neb. 542, 127 N.W. 866 (1910).

Where verdict is for plaintiff, need only assess adequate damages for illegal detention, and costs. Mueller v. Parcel, 71 Neb. 795, 99 N.W. 684 (1904).

Cannot recover damages if defendant was not in possession when issued. Burr v. McCallum, 59 Neb. 326, 80 N.W. 1040 (1899).

Where no finding as to damages, judgment therefor is erroneous. Gordon v. Little, 41 Neb. 250, 59 N.W. 783 (1894).

Where finding is for plaintiff, only judgment provided is for damages for detention and costs. Nollkamper v. Wyatt, 27 Neb. 565, 43 N.W. 357 (1889).

2. Costs

Defendant is not liable for costs where he came into possession rightly and no demand was made before action started. Peters v. Parsons, 18 Neb. 191, 24 N.W. 687 (1885).

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).

Demand is waived where defendant asserts right of possession. Tilden v. Stilson, 49 Neb. 382, 68 N.W. 478 (1896).

Demand is unnecessary where defendant came into possession wrongfully. Wilcox v. Beitel, 43 Neb. 457, 61 N.W. 722 (1895).

General denial does not waive demand. Littlefield v. Wilson, 1 Neb. Unof. 581, 95 N.W. 677 (1901).

Verdict finding right of possession in plaintiff and damages, need not find value of property or special interest. Keller v. Van Brunt, 1 Neb. Unof. 301, 95 N.W. 668 (1901).