25-10,106. Property not taken or returned to defendant; judgment for plaintiff; nature and amount.
When the property claimed has not been taken, or has been returned to the defendant by the sheriff for want of the undertaking required by section 25-1098, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as are right and proper; but if the property be returned for want of the undertaking required by such section, the plaintiff shall pay all costs made by taking the same.
Source
Annotations
1. Possession
2. Damages
3. Miscellaneous
1. Possession
While there can be no recovery of damages for property of which defendant had no possession or control when action was instituted, evidence of possession prior to commencement may be presumed to continue and form basis for judgment. Tesar v. Bartels, 149 Neb. 889, 32 N.W.2d 911 (1948).
Damages cannot be awarded where property has passed into the lawful possession of a trustee in bankruptcy, unless actual possession of the property remained in the defendant or had been returned to him at time replevin action was brought. Omaha U. S. Employees' Federal Credit Union v. Brunson, 147 Neb. 439, 23 N.W.2d 717 (1946).
Action is not changed to trover; recovery depends on rights at commencement of action. Wilkins v. Redding, 70 Neb. 182, 97 N.W. 238 (1903).
In replevin the plaintiff cannot recover damages for property which was not in defendant's possession, or under his control, at the beginning of the suit. Heidiman-Benoist Saddlery Co. v. Schott, 59 Neb. 20, 80 N.W. 47 (1899).
2. Damages
If property is not returned, the measure of damages is the value of the property together with interest from the date of the unlawful taking. Hickman-Williams Agency v. Haney, 152 Neb. 219, 40 N.W.2d 813 (1950).
In an action properly commenced this section provides a remedy where the property has not been taken under the writ. Singer Sewing Machine Co. v. Robertson, 87 Neb. 542, 127 N.W. 866 (1910).
Where property cannot be found, taken, and delivered to plaintiff, or where bond is not given, action may proceed for damages. Hopkins v. State ex rel. Omaha Cooperage Co., 64 Neb. 10, 89 N.W. 401 (1902).
Measure of damages is market value and interest from time taken. Honaker v. Vesey, 57 Neb. 413, 77 N.W. 1100 (1899).
Where defendant parts with possession of property before suit is brought, action can proceed for damages. Lininger & Metcalf Co. v. Mills, 29 Neb. 297, 45 N.W. 463 (1890).
Where plaintiff fails to give bond, measure of damages is value of property at time taken with seven percent interest; judgment for return of property is error without prejudice. Sloan v. Fist, 2 Neb. Unof. 664, 89 N.W. 760 (1902).
3. Miscellaneous
Plaintiff may dismiss action without prejudice. Saussay v. Lemp Brewing Co., 52 Neb. 627, 72 N.W. 1026 (1897).