25-1094. Order for delivery; contents.

An order for the delivery of personal property to the plaintiff shall be made by the clerk of the court in which the action is brought only upon the filing in his office of an order of the court showing (1) a description of the property claimed; (2) that the plaintiff has raised a bona fide issue as to whether he is the owner of the property, or whether he has a special ownership or interest therein, but that it appears sufficiently probable to the court that the plaintiff will prevail on the merits; and (3) that there is a bona fide issue as to whether the property is wrongfully detained by the defendant and that the plaintiff is entitled to the immediate delivery of the property.

Source

Annotations

1. Affidavit

2. Ownership

3. Detention

4. Miscellaneous

1. Affidavit

Affidavit used as evidence in district court cannot be considered on appeal unless preserved in and made a part of the bill of exceptions. Spidel Farm Supply, Inc. v. Line, 165 Neb. 664, 86 N.W.2d 789 (1957).

Affidavit in replevin must show that plaintiff is the owner of the property or has a special interest therein, that he is entitled to the immediate possession thereof, and that the property is wrongfully detained by the defendant. Hickman-Williams Agency v. Haney, 152 Neb. 219, 40 N.W.2d 813 (1950).

Action, without delivery of property, may proceed without affidavit. Racine-Sattley Co. v. Meinen, 79 Neb. 33, 114 N.W. 602 (1908).

Affidavit is prerequisite to order of delivery; order nullity otherwise, and set aside on motion. Case Threshing Machine Co. v. Rosso, 78 Neb. 184, 110 N.W. 686 (1907).

May permit amendment of affidavit to allegation of ownership in amended petition. Tackaberry v. Gilmore, 57 Neb. 450, 78 N.W. 32 (1899).

Writ issued on petition containing necessary allegations of affidavit, sworn to upon belief, is voidable, not void. Lewis v. Connolly, 29 Neb. 222, 45 N.W. 622 (1890).

Affidavit does not take place of petition or bill of particulars. School Dist. No. 36 in York Co. v. McIntie, 14 Neb. 46, 14 N.W. 656 (1883).

Filing affidavit is a proceeding, not a pleading; amendable even after motion to dismiss. Wilson v. Macklin, 7 Neb. 50 (1878).

2. Ownership

To maintain an action for conversion of personal property, a party must have had actual possession of the property or the right of possession. Coulter v. Cummings, 93 Neb. 646, 142 N.W. 109 (1913).

Mortgagee must allege facts showing special ownership and right to possession. Pennington County Bank v. Bauman, 81 Neb. 782, 116 N.W. 669 (1908); Paxton v. Learn, 55 Neb. 459, 75 N.W. 1096 (1898).

Averment of agency is not one of the conditions upon which clerk is authorized to issue order of delivery. Hudelson v. First Nat. Bank of Tobias, 56 Neb. 247, 76 N.W. 570 (1898).

Allegation of special ownership is not sustained by proof of general ownership. Suckstorf v. Butterfield, 54 Neb. 757, 74 N.W. 1076 (1898).

Allegation of general ownership is not sustained by proof of special ownership. Wilson v. City Nat. Bank of Kearney, 51 Neb. 87, 70 N.W. 501 (1897).

Petition must show facts creating special ownership. Griffing v. Curtis, 50 Neb. 334, 69 N.W. 968 (1897).

3. Detention

Where plaintiff did not file a security agreement or lien and did not simultaneously have legal title and physical possession as required by section 60-105, R.R.S.1943, it did not meet its burden of proof for a replevin action. The Cornhusker Bank of Omaha v. McNamara, 205 Neb. 504, 288 N.W.2d 287 (1980).

One having custody of property in dispute is proper defendant. Engel v. Dado, 66 Neb. 400, 92 N.W. 629 (1902).

Wrongful detention is essential. Affidavit may be aided by petition, and is amendable. Hudelson v. First Nat. Bank of Tobias, 51 Neb. 557, 71 N.W. 304 (1897).

Replevin will not lie against one not in possession. Depriest v. McKinstry, 38 Neb. 194, 56 N.W. 806 (1893).

4. Miscellaneous

The United States Supreme Court Fuentes v. Shevin, 407 U.S. 67, decision concerning the validity of prejudgment replevin statutes will not be applied retroactively to a replevin action commenced in 1967. Peck v. Augustine Bros. Co., 203 Neb. 574, 279 N.W.2d 397 (1979).

Property held under void judgment may be replevined. Muller v. Plue, 45 Neb. 701, 64 N.W. 232 (1895).

Allegation that property was not taken on execution, etc., is not sustained by proof that property was exempt. Eikenbary v. Clifford, 34 Neb. 607, 52 N.W. 377 (1892).

Replevin cannot be maintained for property levied upon and claimed to be exempt until after inventory is filed and appraisement and selection made. Mann v. Welton, 21 Neb. 541, 32 N.W. 599 (1887).