40 Neb. 512 | Neb. | 1894
This is an action brought by the plaintiffs in error against defendants in error upon a delivery bond, executed by the defendants for the release of certain personal prop
“4. The court erred in its rulings upon the introduction of evidence offered by the plaintiffs, which were duly excepted to at the time.”
This assignment does not, in the least, indicate what particular piece of testimony was improperly admitted or excluded. The errors relied on for a reversal of a judgment must be specifically pointed out in the petition in error. It is the settled law of this state that such an assignment in a petition in error is too indefinite to present for review the rulings of the trial court on the admission of testimony. (Lynam v. McMillan, 8 Neb., 135; Burlington & M. R. R. Co. v. Harris, 8 Neb., 140; Graham v. Hartnett, 10 Neb., 518; Lowe v. City of Omaha, 33 Neb., 587; Gregory v. Kaar, 36 Neb., 533; Farwell v. Cramer, 38 Neb., 61.) Another reason why the rulings of the district court excluding testimony of plaintiffs’ witnesses cannot be considered is that the excluded testimony was not preserved in the bill of exceptions. (Commissioners of Kearney County v. Kent, 5 Neb., 227; Connelly v. Edgerton, 22 Neb., 83; Yates v. Kinney, 25 Neb., 120; Burns v. City of Fairmont, 28 Neb., 866.)
We have now to consider whether the court below was right in directing a verdict for the defendants. The answer put in issue the execution and delivery of the bond and the acceptance thereof by the officer, also whether the attached property was ever surrendered by the constable to the defendant Maben. It was established at the trial that
Q,. You may now state what was done with those goods after they were attached.
A. They were invoiced and put into a room in the west end of the store building—west end of the main building— and nailed up there.
Q,. After the goods were put into that room state what; was done with them.
A. All that I know that was done with them was just-nailed the room up solid. That was all that I'done with; them afterwards.
Q. State whether or not, after the goods were put in. there and locked up, Mr. Maben done anything, or made; any effort, to get possession of these goods again.
Objected to by the defendants John J. McCafferty and Grover B. Maben, as incompetent, irrelevant, immaterial,, hearsay, and secondary evidence. Objection sustained, and! plaintiffs except.
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Objected to by defendants John J. McCafferty and Grover Maben, as incompetent, immaterial, and not the best evidence, and not competent or proper testimony to bind these defendants as sureties. Overruled and defendants except.
A. I told him that I did not know whether these men were good or not. I did not know either one of them, excepting maybe—I had met Mr. McCafferty, then, and I had not seen Grover Maben at that time. I did not know them and I went and asked Mr. Cortelyou about it, and he said,-
Objected to what Mr. Cortelyou said. Sustained.
Q. Recurring to these orders that you have made here —the returns you have made—in the case of Reed, Jones & Co., and Cortelyou, Ege, and Van Zandt, state where that store building was that is described in your return.
A. It was in Deloit precinct, right in the southeast corner of the county.
Q,. Who did you find in possession of these goods when you went down there?
A. Mr. Maben, you, and Butler.
Q,. The goods you attached you put in the back of Maben’s store and nailed them up?
A. Yes.
Q,. And Mr. Maben still had a lot of goods in the front of the room?
' A. Yes.
Q,. That was the last you ever saw of the goods ?
A. Yes.
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Q. The goods were nailed up ?
A. I don’t know.
A. Yes.
Q,. But that you would give him the goods?
A. No, sir; I did not tell him that.
Q,. You never told him that?
A. I just served the notice upon him.
Q,. That Uttley sent you ?
A. Yes.
Q,. That you would not give him the goods on that bond?
A. No, sir; that was not it.
Q. What was it, now ?
A. I can’t tell you the words now.
Witness excused.
The foregoing is wholly insufficient upon which to base a suspicion, much less an inference, that the property levied upon was delivered, under the forthcoming bond, by the officer to the principal therein named. A bond given for the release of attached property is not operative, nor are the sureties liable thereon, unless the property has been delivered into the hands of the defendant. It is not necessary that the officer physically deliver the property. If he point out the same, and offer to surrender it to the defendant, it is sufficient. But nothing of that kind was done in this case, so far as this record discloses. For aught that appears the goods are still in the room where they were left at the time they were seized under the writs. Doubtless, as counsel for plaintiffs suggests, where such a bond has been accepted and approved, it is the duty of the officer to turn over the property to the defendant, and mandamus will lie to enforce the performance of such duty; but in this ease, since the bond was rejected, Maben was not entitled to the possession of the goods, and we cannot indulge in the presumption that he has received them.
It is argued in the brief of plaintiffs that the sureties are estopped from asserting that their principal did not receive
Affirmed.