Miller v. Willis

15 Neb. 13 | Neb. | 1883

Maxwell, J.

In 1878 the Kansas Wagon Manufacturing company recovered a judgment in the county court against Benjamin H. Willis, and Thos. C. Tagg, for the sum of $76.65 and costs. In January, 1880, an execution was issued on this judgment, and levied on certain hogs as the property of Benjamin H. Willis. Thereupon William H. Willis, a son of Benjamin, claimed the hogs as his and took, them from the plaintiffs in error, Miller being sheriff and Laycock his deputy, on a writ of replevin. On the trial of the cause a verdict was returned in favor of Willis, upon which judgment was rendered. The county judge of York county was called as a witness, and after testifying that he was county judge and had possession of the records of that court, produced the record of a judgment in favor of the Kansas Manufacturing Co. v. Willis and others,, upon which judgment the execution was issued. This was offered in evidence, and objected to by the defendants-in error “ on the ground that the execution in this caséis not the same case at all as that on the record offered in. evidence; that nothing appears in the record to show that the Kansas Manufacturing Co. is a corporation, or personally competent to bring suit within this state.” The objections were sustained and the record excluded. In this there was error. The record clearly shows the recovery of the judgment, and that the execution under which the plaintiffs had levied upon the property in dispute was issued upon that judgment.

The omission of the word “wagon” from the name of' the company or corporation did not render the execution void, nor the record of the judgment, when properly identified, as it was in this case, inadmissible. The sheriff and. the deputy were holding the property under an execution valid upon its face, and issued by the county judge upon a valid judgment in the county court. This being so, thereAvas no such variance as rendered the judgment inadmissible. Where it is apparent from all the pleadings and proceedings in a case that the parties are the same, a slight vari- ■ anee in the name of one of the parties in the execution will not vitiate it. Holmes v. McIndoe, 20 Wis., 657. Hays v. Bernard, 38 Ill., 297. Thornton v. Lane, 11 Ga., 459. Lewis v. Avery, 8 Vt., 289. The record of the judgment, should have been admitted.

Second. The objection that the plaintiff has not legal capacity to sue must be made, if at all, by a party to the suit. It is an objection that must be specially made, or it. will be waived. If no objection on that ground is made,, and judgment by default is rendered, in cases where personal service is had, at least, there is an implied admission of the legal capacity of the plaintiff to bring the action, and. the defendant cannot raise it after judgment is rendered. A stranger cannot raise the objection. The second objection, therefore, was not well taken. The court also excluded testimony which we think should have been admitted, but as it was excluded evidently upon the theory that the execution was invalid, it is unnecessary to refer to it. The judgment of the district court is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

The other judges concur.