45 Neb. 747 | Neb. | 1895
It appears from the record in this case that the National Bank of Wahoo obtained a judgment in the county court of Sauuders county against Prank Havlik for the sum of $567.34 and costs of suit, upon which execution was issued of date November 16, 1893, and delivered to an officer and was returned “no property found.” On the day of the return of the execution the president of the bank filed with the court an affidavit in which it was stated, with other usual averments, that the defendant, or judgment debtor, was the owner of property not exempt under the law from being subjected to the payment of his debts, and which he concealed, and, upon application, an order was issued citing the debtor to appear and answer under oath such inquiries as might be made of him touching his property. The debtor appeared, and as a result óf his examination it was' concluded that Barbara Havlik, the petitioner herein, had in her possession and control three promissory notes of the aggregate sum of $2,200, the property of the judgment debtor, and not exempt by law from being applied to the payment of his debts, and that they were placed in her hands for the purpose of hindering and delaying the bank in the collection of the amount due it, and in fraud of its rights in the premises, and thereupon a citation was served upon
It is stated in the applicant’s petition, among other things, that the applicant has at all times insisted that the promissory notes in question were her property, and hence she declined to turn them over to the court to be applied in payment of the debts of Frank Havlik. There are two main questions raised and discussed in the case as presented here: One is, Is habeas corpus the proper remedy or should the applicant have appealed or prosecuted a writ of error from the decision of the sentencing court? And the other, Was the adjudication of the trial court void or was it only irregular or erroneous? The two are so connected that an answer to the latter will determine the disposition to be made of the former, for, if the judgment of the court, by virtue of which the applicant was committed to prison, was merely irregular or erroneous, then appeal or error was the proper remedy and it cannot be reviewed in a habeas corpus
The proceedings which resulted in the imprisonment of the applicant herein were instituted under the provisions of chapter 2, title 14, of the Code of Civil Procedure, designated “Proceedings in Aid of Execution,” and more particularly sections 532, 538, 541, 546, and 547 thereof. (Code, title 14, ch. 2.) These sections provide for an examination of the.debtor’s debtor before the judge or a referee, and if from the information thus obtained the judge shall conclude that there is any money or property in the hands of the person or corporation examined due the judgment debtor, the judge “may order it to be applied toward the satisfaction of the judgment.” The main intent and purpose of the provisions of the sections under the head of “Proceedings in Aid of Execution” is evidently the discovery of money or property of the judgment debtor liable to be applied toward the satisfaction of the indebtedness, and the order to the third person who was not a party to the original action, or to these summary proceedings, except as cited to appear and answer, if complied with, while it might operate a discharge of all claims by anyone against such person in regard to the moneys or property involved, yet where such third person claims ownership of the money or property his or her right eaunot be fully concluded in the summary manner set forth in the chapter to which we have referred. The judge has a right to direct how the money or proceeds of
Petitionee lisoharqed.
