Sloan v. Bain

Post, C. J. This was an action of replevin commenced before a justice of the peace for Pawnee county, from-whence it was taken by appeal to the district court for said county, when a trial was had resulting in a verdict and judgment for Bain, the plaintiff therein, and which has been removed into this; court for review by means of the petition in error of Sloan, the defendant below. The facts out of which the controversy arose are, briefly stated, as follows: One George Gartner, in the month of March, 1892, took up certain cattle, the property of the defendant in error Bain,, found trespassing upon his, Gartner’s, cultivated land in Pawnee county. Fifteen days later he-caused Bain to be served with notice of which the-following is a copy: “Mayberry, Neb., April 12, 1892. “Mr. Brison Bain: You are hereby notified that on the 28th day of March, 1892, I took up-some stock that I listed as strays, and from information that I have received I am led to believe that they belong to you. I have ten now in my possession and they are described as follows,. * * * which animals did trespass upon my lands, and as I thought that the said animals were strays, I took them up as strays and listed them as. required by law. The amount of damage said stock done I have placed at |25. You are required to pay the above charges within forty-eight hours. [916] from the delivery of this notice, or said stock will be sold as provided by láw. I have appointed Mr. W. P. Parker to act as arbitrator should you not feel satisfied with the amount of damage in the within notice. George Gartner.” Bain, it appears, paid no attention to the foregoing notice, and Gartner in due time filed his claim, with proof of service, with Joseph Brown, a justice of the peace for said county, who found that the cattle in question had been taken up while trespassing upon Gartner’s land and ordered them sold to satisfy the damage of the latter, assessed at $25. A writ was thereupon issued to the defendant below, Sloan, commanding him as sheriff: to sell said cattle as upon execution, but before the day appointed for the sale they were taken from his possession by virtue of the order of replevin in this cause. Gartner without doubt had a lien upon the cattle in controversy, when taken up by him, for the amount of his damage; hence our investigation involves a single inquiry, viz., whether such lien existed in his favor at the time this action was commenced. It has been frequently held that one talcing up stock while trespassing upon his premises must, in order to preserve the lien allowed for his damage, comply ¡substantially with the provisions of our herd law with respect to notice, etc. (Compiled Statutes, ch. 2, art. 3; Haggard v. Wallen, 6 Neb., 271; Bucher v. Wagoner, 13 Neb., 424; Hanscom v. Burmood, 35 Neb., 504.) Although, as said in the case last •cited, notice must be given to the owner of stock ¡so taken up, if known, within a reasonable time, the question is generally one of fact depending upon the circumstances of the particular case. And it cannot be asserted as a proposition of law [917] that the time in this case, fifteen days, is unreasonable, there being no evidence tending to prove knowledge by Gartner of Bain’s ownership previous, to the date of the notice above set out. There was proof of a tender by Bain before the commencement of this action of the sum of $3 in satisfaction of Gartner’s lien, but there was .no evidence whatever tending to show the amount of the damage actually suffered by the latter. The evidence is entirely free from conflict and suggests no reason for holding that the statutory lien upon the cattle impounded has been discharged by act of Gartner or by operation of law. It follows that the right of possession of the property in controversy was at the time this action was commenced in the plaintiff in error. The judgment is accordingly reversed and the cause remand for further proceedings in the district court. Eeversbd.