78 Neb. 715 | Neb. | 1907
The action is against a former clerk of the district court on his official bond, and is grounded on an alleged failure to index certain judgments, by reason of which the judgment defendants were enabled to and did transfer real estate possessed by them and thus defeated the collection of the judgments. The answer alleges negligence of the plaintiff in not causing execution to sooner issue upon the judgments, and charges that one of the judgment debtors owned real estate of sufficient value to satisfy the judgments at the time they were obtained; that he after-wards transferred the same by deed to the Schlitz Brewing Company, and that more than five years after the rendition of the judgments the plaintiff had execution issue thereon and caused the same to be levied on the real estate so transferred; that the property was then of the actual value of $10,000, and was appraised for the purpose of sale at $8,000, more than sufficient, at two-thirds of the appraised value, to satisfy the judgments involved; that the brewing company thereupon obtained in the federal court a temporary injunction restraining the sale, and that pending the hearing on the temporary order the plain
The judgments were entered at a term of court commencing February 6, 1893, and were liens on the real estate of the debtor defendants from the first day of the term. It is the claim of the plaintiff that the evidence discloses the property, the date of the sale of which is the principal matter in controversy, to have been the subject of an oral contract of sale between the owner and the brewing company prior to February 6, and $150 of the purchase money paid; that the contract was thereafter fully executed, and that the judgment lien attached only to the debtor’s interest in the property, represented by a
The trial court instructed the jury on this branch of the case as follows: “The court instructs the jury that under ' he law of this state a verbal contract for the sale of real «'state is void, and a payment of the part of the purchase price alone does not make it valid or bind the bargain. If from the evidence in this case you believe that there was no contract, or, if any, only an oral contract, without any payment in behalf of the Schlitz Brewing Company, without delivery of possession of the real estate in question, before February 7, 1898, between the Joseph Schlitz Brewing Company and Dr. Brumback, then the judgments described in plaintiff’s amended petition became, were, and continued to be a lien upon the real estate which has been referred to by the witnesses herein as the ‘Schlitz property’ and upon all the improvements thereon at any time thereafter during the life of said judgments until the sale of said property under said judgments or one of them.” Whether the instruction, if erroneous, was prejudicial to the plaintiff depends upon the facts. Byron Bradt conducted the negotiations on behalf of the brewing company for the purchase of the property. He was a saloon-keeper residing in Beatrice, and was desirous of purchasing the property on his own behalf; with.that object in view he went to Milwaukee, Wisconsin, and interviewed the proprietors of the Schlitz Brewing Company for the purpose of borrowing money to purchase the prop
He was called as a witness on behalf of the plaintiff, and from his testimony the date of the contract must be determined. On the direct examination he testified to having had the first conversation with the owner, one Brumback, and after his visit to the breAving company they sent their agent from Omaha to inspect the property, Avho determined the value to be $4,500 and that the company would pay that price. His testimony in part is as . follows: “Q. Noav, at the time you and he agreed with Brumback on the price, was there any consideration paid to Brumback? A. I think I paid him $150 Avhen the thing Avas settled, myself. Q. What was that for? A. It was the custom; I don’t remember the price. He Avanted something to bind the contract someway. I suppose that Avas it. I don’t remember now; it is so long ago; my memory is not very good anyway, I guess. * * * Q. When was this $150 paid with reference to the time the deed was made? A. I couldn’t tell you; probably as soon as we could get an understanding with the people; I couldn’t tell you about the time, or how long. Q. Was it paid before or after the deed was made? A. It must have been made before. Q. How long before would you say? A. That is something you can’t- Q. Your best judgment is all I am asking? A. I Avouldn’t think 30 days, probably not 20 days. Q. Several days before the deed Avas made? A. Yes, sir; a few days, but how long I don’t remember.”
On cross-examination, after having testified that the first negotiations with Brumback Avere with a view of purchasing the property for himself, and of his attempt to borrow the money from the breAving company, that he Avent to Milwaukee about January 20, 1893, for that purpose, and that some time after his return a representative of the company visited Beatrice for the purpose of inspect
The only reasonable inference to be drawn from this testimony is that the contract for the purchase of the property between the brewing company and Brumback was made on February 7, 1893, the day following the one on which the judgment liens attached; that any negotiations which Bradt may have had with Brumback prior to that time were on his own behalf and constituted no'part of the. transaction between the brewing company and the owner , of .the title.- That being true, it follows that whatever else may be said of the instruction complained of it was not prejudicial to the plaintiff.
Another objection urged against this instruction is that it fails to take into account the prior incumbrance on the property at the time the judgment was rendered. That
It appears that in the proceedings in the federal court the deposition of the witness Bradt was taken on behalf of the Schlitz Brewing' Company, and the plaintiff in .this case offered to prove at the trial what this witness testified to when his deposition was taken. Objections were sustained by the trial court, and this ruling is assigned as error. The ruling in that respect does not appear to be prejudicial to the plaintiff. The witness was called for the plaintiff, and on his direct examination testified substantially as it is claimed he testified in the proceedings in the federal court, and to shoAv that he testified to the same facts at another time Avould not strengthen his testimony noAV.
Finally, it is contended that the judgment is contrary to the evidence in any event. This contention is based upon the statement that the judgments amounted to the sum of |6,104.59 at the time the execution was levied on the property claimed by the Schlitz Brewing Company, and that the value of the property at that time did not exceed $8,000, as shoAvn by the evidence, and that after deducting the prior incumbrance there remained a valuation of but $5,385 to apply on the judgment indebtedness. The computation, hOAvever, omits certain payments admitted by the president of the plaintiff bank to have been paid on the judgments. Furthermore, there is evidence in the record from which the jury might have found, and probably did find, that the value of the property Avas as much as $9,000, more than sufficient to satisfy the indebtedness.
It foil OAArs that the judgment of the district court should be affirmed.
Affirmed.