61 Neb. 847 | Neb. | 1901
Parrott, hereinafter referred to as plaintiff, sued Ames, hereinafter styled defendant, setting up five causes of action for services rendered and money loaned. An order of attachment was issued at the instance of the plaintiff and levied upon the lands of the defendant. The latter moved to discharge the attachment on the ground that the levy was irregular and invalid, and is here upon error from the order of the court overruling such motion, and from the judgment of the court in favor of the plaintiff upon the main case.
The sheriff’s return shows that upon receipt of the order of attachment he went to the lands to be levied upon and attached them “in the presence of J. B. Parrott and F. P. Salmon, two residents of Douglas county, state of Nebraska.” It appeared in evidence upon the motion to discharge the attachment, and the court found, that “the J. B. Parrott named by the officer in his return to said order of attachment and Jerome B. Parrott, plaintiff herein, are one and the same person,” and it does not appear and is not claimed that any person other than said Parrott and Salmon was ^present at the time of the levy. For these reasons the defendant contends that the requirements of the statute were not complied with and that the levy is invalid. The Code (section 205) provides that in levying an attachment the officer “shall go to the place where the defendant’s property may be found, and there in the presence of two residents of the county, declare that by virtue of said order he attaches said property at the suit of such plaintiff; and the officer, with the said residents, who shall be first sworn or affirmed
In the analogous cases of attesting witnesses to deeds and mortgages it is well settled that they must be without direct or certain legal interest in' the act attested. Interested parties have also been held disqualified from attesting a chattel mortgage (Seibold v. Rogers, 110 Ala., 438, 18 So. Rep., 312), or a signature to a note by mark, required by statute to be attested. Chadwell v. Chadwell, 98 Ky., 643, 33 S. W. Rep., 1118. The object of requiring attestation of deeds and other instruments is to enable the other party to inquire into the circumstances attending the sealing and delivery (Markley v. Swartzlander, 8 Watts & Serg. [Pa.], 172); and although the incompeteney of grantees or parties directly interested in conveyances to attest their execution has sometimes been put upon the ground of common law incapacity to testify to the facts in court, and sometimes upon construction
It is a well established rule that where there is a special statutory provision respecting the manner in which levy of an attachment shall be made, it must be strictly observed, and that departure therefrom will invalidate the levy. 1 Shinn, Attachment & Garnishment, sec. 207; Drake, Attachment, secs. 194, 236a; 3 Ency. Pl. & Pr., 54; Fairbanks v. Bennett, 52 Mich., 61, 63, 17 N. W. Rep., 696; Cary v. Everett, 107 Mich., 654, 65 N. W. Rep., 566; Main v. Tappener, 43 Cal., 206; Norvell v. Porter, 62 Mo., 309; Gates v. Tusten, 89 Mo., 13, 21; Bottoms v. McFerran, 43 S. W. Rep. [Ky.], 236. Not only have very small irregularities in other respects been held fatal to the levy,
Exception is also taken 'to the judgment in the main case for the reason that no reply was filed to the answer of the defendant wherein he set up an accord and satisfaction as to the first cause of action in the petition. The judgment is general, and it does not appear upon which of the causes of action it was rendered, but it is conceded that the amount thereof could only be sustained by a finding for the plaintiff upon each. That material allegations of new matter in an answer will stand admitted unless replied to is .firmly established by recent and repeated decisions of this court. But it is argued that the answer in the case at bar contains no material allegations of new matter requiring reply, and also that the cause was tried below on the theory that the affirmative allegations of the answer were denied, and hence that reply was waived, or at least the failure to reply may not be urged at this time. In the first cause of action plaintiff alleged that he commenced work for defendant in November, 1890, as a salesman and collector, and continued in his employment for the period of fifty-two and two-thirds months. He further alleged that at the time he entered such service the parties orally agreed upon a compensation of $75 a month for the period of one year; that at the expiration of the year they agreed orally to continue said contract
With respect to the claim that the cause was tried
It is contended, however, that the motion for a new trial was not filed at the proper time, and hence that errors in the judgment are not reviewable. The cause was tried to the court without a jury. The findings of the court are dated April 3, 1897, but the judgment, including the findings, appears on the journal of April 10,
For the foregoing reasons it is recommended that the order overruling the motion to discharge the attachment and also the judgment in the main case be reversed, and that the cause be remanded with directions to discharge the attachment and grant a new trial of the main case.
By the Court: For the reasons given in the foregoing opinion the ruling on the motion to discharge the attachment and also the judgment in the main case are reversed and the cause is remanded with direction to the district court to discharge the attachment and grant a new trial of the main case.
Reversed and remanded.