Wedgewood v. Citizens National Bank

Maxwell, J. This is an action of replevin brought by the defendant in error against the plaintiff to recover the possession of “ The entire stock of drugs, medicines, and fixtures, toilet articles, fancy goods, and all merchandise and goods of every description; also, one fire proof safe, eleven show cases, all tools and furniture of every description, paints, oils, shelf ware, wines, whiskies, cigars, notions; also, all shelving and partitions, lamps and stoves, and everything lately contained in the store building known as Zimmer’sdrug store, or Heimberger’s drug store, in the Academy of Music building, on Third street, in the city of Grand Isl- and, in said Hall county, and of the value of $1,500.” The answer is a general denial. On the trial of the cause a jury was waived, and the court found the value of the property to be $1,526, and that the bank had a special interest therein to the amount of $1,137.25 and rendered judgment in its favor for that sum. The plaintiff in error claims possession under certain attachments levied by him on the property, and the defendant in error by virtue of a chattel mortgage executed by one Zimmer, dated July 28, 1884, and also one dated October 4, 1886. The testimony shows that the mortgagors were permitted after the execution of the mortgage to sell goods in the same manner as if no mortgage had been given, and a considerable portion of the property on which the mortgage lien existed had been sold and replaced by other goods. This court by a long series of decisions has held that a mortgage on goods in this state is a specific lien which attaches to the goods mortgaged and not to goods in general. (Tallon v. Edison, 3 Neb., 63; Williams v. Evans, 6 Id., 216; Hedman v. Anderson, 6 Id., 392; Gregory v. Whedon, 8 Id., 373.) In no view of the case, therefore, can the judgment in favor of the bank be sustained. [167] The mortgagor having been in possession for so long a time before the bringing of the action and no objection being made by creditors or others, the question of fraudulent intent, or the want of it, is not referred to in the briefs and does "not seem to arise in the case and will not be discussed. The judgment is reversed and the cause remanded for further proceedings. Reversed and remanded. The other judges concur.