40 Neb. 820 | Neb. | 1894
On the 17th day of September, 1890, the Commercial Banking Company commenced this action of replevin in the district court of Eurnas county, to obtain possession of a stock of general merchandise, and its petition then filed, after stating its corporate character and giving a description of the stock, alleged, as showing its ownership and right to possession of the property, that, “ On the 3d day of September, 1890, Chester H. Foland, the owner of said goods and chattels, executed and delivered to plaintiff a chattel mortgage on said goods and chattels to secure plaintiff for the sum of $3,067.57, which amount was justly and legally due plaintiff from said Chester H. Foland, and which is still unpaid, and by virtue of said chattel mortgage plaintiff took possession of said goods and chattel's on the said 3d day of September, 1890, and held possession of the same until the 17th day of September, 1890, when defendant S. S. Hewitt unlawfully and forcibly took possession of the same and still holds the same in his possession. Said chattel mortgage was duly filed for record in the office of the county clerk of Furnas county, Nebraska, on said 3d day of September, 1890.” The petition further contained the usual allegations of petitions in actions of replevin. The defendant, who it appears was the sheriff of Furnas county, in answer to this petition admits the existence of the banking company as a corporation; admits that the chattel mortgage was executed and delivered to it by the party on the date, for the sum, and conveying the stock of goods as pleaded in the petition, and traverses separately, or specially denies, the other allegations of the petition, and as a further defense states:
There are several assignments of error which complain of the action of the court in sustaining objections to certain interrogatories propounded to witnesses during the progress of the trial, but as these are ignored in the brief filed for plaintiff in error, they will be deemed waived and will not be further noticed.
The sixth assignment of error isas follows: “The court erred in giving paragraphs 4, 6, 7, 9, 10, 11, 12, 13, and 14 of instructions to the jury given by the court on its own motion.” We have examined the instructions enumerated in the above paragraph of the petition in error, and several, if not all, of them are fully pertinent to the issues in the case and correctly directed and informed the jury; and having determined this, the assignment quoted will not be further considered, agreeably to the rule announced in Hiatt v. Kinkaid, 40 Neb., 178, viz.: “An assignment of error as to the giving en 'masse of certain instructions will be considered no further than to ascertain that any one of such instructions was properly given.” (See, also, McDonald v. Bowman, 40 Neb., 269; Jenkins v. Mitchell, 40 Neb., 664.)
Assignment No. 7 reads as follows: “The court erred in refusing to give paragraphs 2, 2-J-, 3, 4, 5, 6, and 7 of instructions asked for by the plaintiff in error.” There are several of the instructions of those grouped in this assignment,, the design of each of which was to challenge the
In the ninth assignment of error it is stated as follows: “There was irregularity in the proceedings in this, that after the evidence was in, and before argument of counsel, the-judge, J. E. Cochran, stated in the presence of the jury that he had prepared his instructions and had them typewritten prior to the present session of court; that he had’ made up his mind on the question of the right of shifting security from the homestead of Chester H. Foland to the goods in controversy; that there was no question but that the said Foland had said right, and that he ought to have instructed the jury to that effect on the other trial; that the charge of the court was given upon its own motion, is partly type-written and partly in the handwriting of J. T. Lindsay, one of the attorneys for plaintiff in this action,, and that that part of the instructions which is in the handwriting of J. T. Lindsay, attorney for plaintiff, was handed by.said Lindsay to said court in the presence of the jury, attached to said type-written instructions as that of the-court. All of which conduct of the court in the presence of the jury was irregular and prejudicial to the rights of plaintiff in error herein. Said facts appearing from the affidavits marked ‘ Exhibit A’ and ‘ B’ attached to the motion for a new trial, which will be found in the transcript herein.” There is no instruction referred to by number in the above assignment of error, or specifically or definitely
Another assignment of error which is insisted upon in the argument is that the verdict was not sustained by sufficient evidence. The testimony discloses that about one year prior to the date of the execution and delivery of the mortgage, which is attacked as fraudulent in this action, to-the defendant in error, one Foland purchased of a Mr. Williams a stock of general merchandise and in payment therefor gave him notes secured by mortgage upon some real estate to secure the payment of such notes. The land mortgaged to Williams was, it appears, the homestead of Foland and was mortgaged in the sum of $2,000, which as a lien was prior to the lien of the mortgage given to Williams. That when the first of the notes evidencing the consideration for the sale of the stock of goods from Williams to Foland became due, Foland failed to pay it, and in a conversation then had (this being some six months subsequent to the time of the sale of the goods) Foland agreed to give Williams a chattel mortgage on the stock, Williams claiming that the land was insufficient security and not worth at forced sale to exceed the amount of the prior lien of $2,000, Foland expressing himself as perfectly willing and ready to do this if Williams would release the mortgage which he then held on the land, as such action would clear his homestead of the lien of the second mortgage; that Foland was indebted to the bank, defend
Affirmed.