44 Neb. 873 | Neb. | 1895
The defendants in error have presented a cross-petition in error to'reverse an order of the district court overruling their motion to strike from the record notations of exceptions on the margin of the instructions. Inasmuch as most of the assignments in the plaintiff’s petition in error relate to the instructions it is necessary to consider and decide upon the questions presented by the cross-petition before reviewing the case on the principal petition in error. The record filed with the cross-petition consists of the motion to strike from the record the notation of exceptions and an order overruling the same without any specific findings. There .is also attached, duly settled and authenticated, a bill of exceptions embodying the affidavits used on the hearing of this motion, the judge’s certificate to this bill of exceptions containing specific findings of fact and the reasons of the court for overruling the motion. The reasoning of the court is not properly a part of the record iii any place, and the special findings, to be available, should be embodied in the record and not in the bill of exceptions. The record filed with the plaintiff’s petition in error shows on the margin of each instruction given or refused a notation to the effect that plaintiffs except. After this notation appear, in some instances, the words “Scott, Judge,” and ■from the affidavits filed and used on the hearing of the motion to strike, it appears that immediately after the court charged the jury and refused the instructions which were refused, counsel on both sides arose before the jury had left the box and indicated their desire to take exceptions; that one of plaintiff’s attorneys stated that he intended to take
The defendant in error, in support of his cross-petition, argues that the notation of the exceptions by counsel was unauthorized and of no avail; that the instructions should be incorporated in the bill of exceptions and are not part of the record, or, if the instructions themselves are a part of the record, that the exceptions thereto are not and must appear by bill of exceptions and not by the transcript. In order to come to a consideration of these points it is necessary to refer to the statutes. Chapter 19, section 52, Compiled Statutes, makes it the duty of the judges to reduce their charges to writing unless the same be waived ■in open court “and so entered in the record of said case.” Section 53 provides for the modification of instructions requested by the use of such characterizing words as “‘changed thus,’ which words shall themselves indicate that the same was refused as demanded.” Section 54 requires the court to read the instructions given to the jury, to announce them as given, and to announce as refused all those which are refused and to-write the word “given” or “refused,” as the case may be, on the margin of each instruction. Section 55 requires all instructions to be filed by the clerk, and provides that “such instructions shall be preserved as part of the record of the cause in which they .were given.” Section 307 of the Code of Civil Procedure defines an exception as “an objection taken to a decision -of the court upon a matter of law.” Section 308 requires the party objecting to the decision to except at the time the decision is made. Section 310 provides that where the de
We now come to a consideration of the plaintiff’s petition in error. The action was one in replevin by Blumer against the sheriff of Douglas county to recover the possession of a stock of merchandise which had been levied upon . by the sheriff under a writ of attachment sued out by theKilpatrick-Koch Dry Goods Company against one Luchsinger. The plaintiff claimed under an instrument executed by Luchsinger in form of a bill of sale containing the following provision: “The said F. L. Blumer agrees to take immediate possession of the said property, to sell. the same at retail in the usual course of trade and to account to the said Fred Luchsinger for any sum or surplus there may be over the said amount of money first above named, and the expenses of keeping said property and selling the same as aforesaid.” This instrument was given ostensibly to secure the payment of a debt from Luchsinger to Blumer, and there is evidence tending to show that Blumer took immediate possession under the bill of sale and retained possession until the levy of the attachment. The sheriff and the Kilpatrick-Koch Dry Goods Company, which was allowed to intervene, contended that the conveyance to Blumer was in fraud of creditors.
The court instructed the jury in the first instruction given
The second instruction is open to the same objection.
The fifth instruction is as follows:
“ 5. The burden is cast on the plaintiff to satisfy you by a preponderance of the evidence that he paid a considera*880 tion for the execution of the instrument under which he claims the right to the possession of the goods and chattels in controversy. If the plaintiff has satisfied you by a preponderance of the evidence in the case that the instrument under which he claims possession of the property was based upon a valuable consideration, then the burden of proof is cast upon the defendant to show by a preponderance of the evidence that the instrument was given by Luchsinger for the purpose of cheating and defrauding his other creditors; and if the testimony does so satisfy you by a preponderance of the evidence, then it becomes incumbent on the plaintiff to satisfy you by a preponderance of the evidence that he, the plaintiff, did not participate in or have knowledge of such fraudulent intent and purpose of said Luchsinger and that he, the plaintiff, took the instrument in good faith and for the purpose of securing a bona fide, then existing, debt from Luchsinger to him.”
It is doubtful whether the direct instructions in the first and second paragraphs, that the burden was on plaintiff to show good faith, could be corrected by a subsequent instruction stating the rule correctly, but even if they could, this fifth paragraph did not state the rule correctly. It is not the law that the burden of proof of fraud depends solely upon the existence of a valuable consideration, nor is it the law that when a creditor has established a fraudulent intent on the part of the debtor, the burden shifts and the grantee is required to show that he did not participate in such fraudulent intent. On the contrary, except in cases where the burden is on the party claiming under the conveyance to establish his good faith, a creditor attacking the conveyance must show by a preponderance of the evidence both that the grantor was actuated by a fraudulent intent and that the grantee participated therein or had notice thereof. For the errors referred to the judgment must be reversed and the cause remanded.
Reversed and remanded.