56 Neb. 511 | Neb. | 1898
This was an action of replevin brought by Millie Mc-Curdy against W. H. Ryan to recover the possession of a horse. The finding and judgment of the district court were against the1 plaintiff, and by this proceeding in error she presents the record to this court for review. The defendant, who was the sheriff of Dakota county, acting under the authority of an execution issued by a justice of the peace in favor of Kuntz & McCarthy and against S. M. McCurdy, levied upon, and took from the possession of the plaintiff, the property in question. At the trial the defendant asserted that the horse was purchased by the plaintiff to enable S. M. McCurdy to hinder, delay, and defraud his creditors, and that it was, therefore, subject to ¡seizure and sale for the satisfaction of the execution. The proceedings before the justice in the case of Kuntz & McCarthy against S. M. McCurdy were given in evidence to establish the sheriff’s special interest in the property. From the record it appears that the judgment in that case was rendered by default, and that the officer’s
“Received this writ April 21, 1893. As commanded, I, on the 24th day of April, 1893, summoned the within named S. M. McCurdy by - at his usual place of residence a certified copy of this summons, and of the indorsements thereon. Dated this 26th day of April, 1893. W. H. Ryan, Sheriff”
It is contended that this return was insufficient to vest the justice with jurisdiction of the defendant McCurdy, and that the judgment, which was the basis of the execution, was and is absolutely void. The question need not be determined, for the validity of the judgment stands admitted. Counsel for the plaintiff conceded at the trial that there was a judgment; and the proceedings before the justice show that su'ch judgment was in favor of Kuntz & McCarthy and against S. M. McCurdy for the sum of $25.75. An admission of the existence of a judgment cannot be construed as meaning a record which purports to be, but is not, a judgment. Without passing on the legal effect of the evidence of service of the summons, we therefore hold, on the record before us, that the validity of the judgment and execution offered in support of defendant’s special interest were fully established. We think, however, there was no sufficient evidence on which to base a finding that the sale through which plaintiff derived title was fraudulent as to creditors of S. M. Mc-Curdy. There is no dispute about the facts. The plaintiff and S.'M. McCurdy are brother and sister. In July, 1892, they were living together on a farm in Dakota county. For some reason, which does not appear, either directly or inf erentially, McCurdy determined to abandon the farm and remove to Pennsly vania. Before taking this step he sold and delivered to his sister the horse in controversy, seven other horse's/a binder, a plow, a seeder, a wagon, a mowing machine, and a growing crop of flax for the agreed sum of $963. Of this amount $30 was paid in cash. An indebtedness of $19.25 due from McCurdy
Eeversed and remanded.