57 Neb. 497 | Neb. | 1899
This action was brought; in the district court of Dawes county for the recovery of damages which it was alleged Lucien Deranleau has sustained by the wrongful suing out of an attachment against, and the levy thereof upon and appropriation of, certain of his property, consisting of cattle, calves, and a horse. George P. Waller and William E. Alexander were joined as defendants because it was alleged that they Avere sureties on the attachment undertaking. The answer contained a denial, in' conjunction with certain affirmative matters of defense, which we shall now describe.
Being asked to state what the circumstances were which led to his swearing out and issuing of the order of attachment Mr. Jandt said: “Mr. deranleau was owing me a bill of $505.91, besides a mortgage.” At this point there was sustained a motion to strike out this testimony because the amount of the bill was immaterial. There was an exception to this ruling, a part of the proceedings which we shall not hereafter note, for heretofore we had never dreamed in our philosophy of the number of objections, motions to. strike, and exceptions which, with industry, might be crowded into an average-sized record. Mr. Jandt further testified that he gave Deranleau consent to remove some horses, upon which Jandt had a
The above history of the attempt to show that there was justification for resorting to an attachment has been necessitated by the protracted efforts which were made in that direction. From this history it is very clear that Deranleau was owing the bill claimed, but this fact was excluded from the jury’s consideration. He had removed, practically, all his property from the state, except his cattle, and these his brother-in-law was selling as his own. Jandt was not permitted to show attempts to procure a settlement of his bill, nor even where Deranleau was residing while a correspondence was held with him to procure such a settlement. His evidence of a consultation with an attorney as to the necessity of resorting to attachment was excluded, as was also the fact that certain mortgaged property which Deranleau had permission to. remove to South Dakota he had taken to Wisconsin. Under these conditions the court gave the following instruction: “The plaintiff has introduced evidence showing that by an order of the district court of this county the order of attachment in question was discharged and the attached property ordered returned to the plaintiff herein, and it was contended by counsel that this order was conclusive on the question of the wrongful issuance of the order of attachment; but as the record in evidence fails to show the grounds upon which the order discharging the attachment was made, many reasons therefor having been assigned, the court has seen fit, under the amendment allowed to the answer during this trial, to submit to the jury all the facts and circumstances immediately attending the issuance and levy of the writ and the disposition made of the attached property, and so leave to your determination the question whether the issue and levy of the attachment was wrongful.”
Reversed and remanded,