Wise v. Frey
Nebraska Supreme Court
Error to the district court of Cuming county, the case being thus: In 1877 plaintiff filed a petition in the district court, claiming the ownership and right of possession of certain personal property therein described; at the November term, 1877, defendant filed a general demurrer to said petition, which. demurrer was on the 18th day of December argued and sustained by the court, and an order entered accordingly.
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Error to the district court of Cuming county, the case being thus: In 1877 plaintiff filed a petition in the district court, claiming the ownership and right of possession of certain personal property therein described; at the November term, 1877, defendant filed a general demurrer to said petition, which. demurrer was on the 18th day of December argued and sustained by the court, and an order entered accordingly. Afterwards, on the 9th day of January, 1878, a stipulation, signed by the attorneys of both parties, was filed in said cause, by which the journal entry of December 18th was erased,…
1Opinion of the Court
Cobb, J.'
There can be no doubt of the power or of the duty of the district court upon sustaining the demurrer to *220the petition, the plaintiff (in the court below) not asking leave to amend, but electing to stand upon his petition to render judgment in favor of the defendant for the return of the property replevied, and if such return could not be had, then for the value of the property replevied on proof of such value and amount of damages. Such appears to be the provision of the act of February 25, 1875. [Laws, 1875, p. 44.] And this court must presume that there was such proof in the…
2Cases cited2 opinions
- Smith v. PinneyNebraska Supreme Court · 1873
- Wise v. FreyNebraska Supreme Court · 1878
3Cited by3 opinions
- Hamaker v. PatrickNebraska Supreme Court · 1932
- Central West Investment Co. v. Barker Co.Nebraska Supreme Court · 1907
- Symns v. NoxonNebraska Supreme Court · 1890