Ball v. Nelson

45 Neb. 205 | Neb. | 1895

Ryan, C.

The record in this case contains a petition entitled “Swen Nelson v. William G. Ball,” in which the plaintiff’s cause of action alleged was the failure of the Nebraska & Kansas Farm Loan Company to pay to plaintiff the sum of $413.50 due him; the failure of said Nebraska corporation, for more than a year anterior to the incurring of said debt, to publish the notice of its indebtedness required by section 136, chapter 16, of the Compiled Statutes previous to the repeal of said section in 1891, and the fact alleged that the defendant was a stockholder in said corporation during its said default of publication as well as of payment. The petition closed with a prayer for a personal judgment against William G. Ball in the amount above named. By affidavit filed in this case it was shown that defendant was a non-resident of this state, and that in the hands of one C. C. Elansburg he had moneys, and that therefore said Elansburg was owing said defendant. There was served upon Mr. Elansburg a notice of garnishment, requiring him to appear in the district court of Harlan county and answer as garnishee on November 1, 1892. We do not find in the record any answer of .this garnishee. In one part of the transcript it is recited that a demurrer was overruled, to which ruling the defendant excepted; afterwards in the record, under proceedings of the same date as that whereon the ruling referred to was made, it is recited that the cause came on to be heard on demurrer, which was overruled, and that the garnishee excepted and refused to plead further, whereupon the court entered judgment against the defendant for the sum of $200. Erom the fact that one of these entries was made in the trial docket and the other in the journal of the same date, it is presumable that they described the same transaction. It is quite likely, too, that the first was simply a memorandum made by the presiding judge, from which the journal entry was prepared. If this is a correct surmise, there could only be considered the journal entry (Brown, v. Ritner, 41 Neb., 52), and it would necessarily result that we could prosecute no further inquiry, for the defendant could not avail himself of an exception not taken by a party to the action. It is possible that the demurrer was filed for the defendant, but neither of this nor of the grounds of the demurrer have we any means of information, as it was not made a part of the transcript. Under these cireumstances we cannot presume, that the district court erred in the ruling made upon whatever demurrer was considered, and as the entire argument of plaintiff in error ‘was directed to this proposition, and no other is presented by the record, the judgment of the district court is

Affirmed.