22 Neb. 82 | Neb. | 1887
This was an action in replevin instituted by plaintiffs in error (who claim the possession of the property in dispute, by virtue of a chattel mortgage) against defendants in error (a constable! and the sheriff of Douglas county), who also claimed the possession, but by virtue of the levy of certain attachments upon it as the property of'the mortgagor. The contest is between the mortgagees and creditors — the former asserting the bona fides of their mortgage, the latter contending that it is fraudulent. The decision of this question of fact was peculiarly within the province of the trial’ jury, and we are unable to see that it should be disturbed.
The actual indebtedness at the time of the execution of the' mortgage -was about $1,800, while the mortgage was given to secure two notes — one for $400, due in ninety days from its date, and one for $7,600, due in five years from date, each drawing interest at the rate of ten per cent per annum, the former bearing date August 13, the latter August 16,1883. The testimony in the case is quite voluminous, and we can see no good purpose to be sub-served by discussing it at length. While it 'is true that the fact that the mortgage was given for a larger amount than the actual indebtedness is not by any means conclusive evidence of fraud, and especially so when the explanation is sought to be made that the excess was for the purpose of
It was shown by the testimony of Peter Connelly, one of the plaintiffs, that he was in the wholesale liquor trade. He was then asked to “state whether or not it is not the custom among wholesale liquor men to do this kind of business,” referring to taking the notes and mortgage for a larger amount than the actual indebtedness, for the purpose of covering future advances. This question was objected to upon the usual grounds, and the objection was sustained, to which an exception was taken, and the ruling of the court is now assigned for error. While we think the ruling of the court was correct, yet, under the repeated decisions of this court, no error can be successfully assigned in such case without an offer of proof of the facts sought to be established. Mathews v. The State, 19 Neb., 338. Masters v. Marsh, Id., 462. Lipscomb v. Lyon, Id., 522. No such offer was made.
Objection is made to the ruling of the court in allowing the witness, Orchard, to testify as to the value of linoleum. This objection is based upon the alleged fact that no such property had been levied upon, and that the effect of the testimony was to increase the value of the property in dispute, in the estimation of the jury, when in fact there was no such item in dispute. The linoleum referred to was the matting or floor covering for the saloon, purchased by the mortgagor of the witness. It very clearly appears that the name given by the witness referred to the property in dispute, but which by the other witnesses was denominated oil cloth. The testimony clearly referred to the same article, and was therefore properly admitted.
One Charles Little was called as a witness, on the part of the defense, for the purpose of proving the value of the fixtures in the saloon, they being a part of the property in dispute. He testified that he had been engaged in the saloon business ten or twelve years, had purchased the property spoken of, and was acquainted with their values, and testified to the same. On cross-examination he was asked, if in giving his estimate of the values he did not
Objection was made to the introduction of the dockets of various justices of the peace, showing judgments against McGuire, the mortgagor. As there are a number of these judgments attached to the record as exhibits, we will not discuss the objection to each one separately, but will notice the objections in a general way. It is urged that some of them showed upon their face that they had been tampered with; meaning, we suppose, that they had been changed since their entry upon the docket. As the transcripts attached to the record are wholly silent upon this point, and no proof was offered thereon, it would be impossible for us to say, from the record, whether the judgments were as originally rendered or not, but we must presume they were. Others are attacked because they contain no finding of fact. While this would be sufficient to reverse a judgment by the proper proceeding in error, yet the judgment is not for that reason void. Hansen v. Bergquist, 9 Neb., 278. Doty v. Sumner, 12 Id., 378. McNamara v. Cabon, 21 Neb., 589.
It is claimed that the levy under the first writ of attachment was void, and therefore all subsequent levies must fall with it. We do not believe the first levy was void, although somewhat irregular. It might be subject to be set aside by the court to which it was returned, and yet be valid when collaterally attacked. This writ was issued by the county court in an action in which the sum claimed was $210.00. By section 16 of chapter 20, Compiled
It is claimed that the levy under this writ was excessive. If so, it should have been set aside in the court having jurisdiction of the cause. Pugh v. Calloway, 10 O. S., 488. But the evidence shows that after the levy and before the appraisement the other attachments followed, and therefore it was proper that but one appraisement should
The last objection which demands our attention is as to the verdict of the jury. It is. as follows, omitting the formal parts:
“We, the jury duly empaneled and sworn to try the issues joined in the above entitled case, do find for the defendants. We further find that at the commencement of this suit the defendants were entitled to the possession of the property in controversy. We further find that the value of said property, being the interest of the defendants therein, was $2,597.00, and we assess the damages of said ■defendants by reason of the wrongful detention of the property at $246.16, being the interest on said value to the first day of this term.”
It is insisted that this verdict does not find the value of the possession of defendants as required by law.
Section 191 of the civil code is as follows: “In all cases where the property has been delivered to the plaintiff, where the jury shall find, upon issue joined, for the derfendant, they shall also find whether the defendant had the right of property or the right of possession only at the commencement of the suit; and if they find either in his
The verdict finds for the defendants and that they were entitled to the possession of the property; it also finds the value of the interest of defendants to be $2,597.00 and the damages for the wrongful detention. This is a sufficient compliance with the section above quoted. It conforms in substance to the form given in Maxwell’s PI. and-Pr., 489 and 490. There is no claim that the value of the interest of defendants as found by the jury exceeded the actual value of the property.
The judgment of the district court is affirmed.
Judgment affirmed.