56 Neb. 132 | Neb. | 1898
The Moline, Milburn & Stoddard Company sued out from the district court of Douglas county a writ of replevin for certain wagons. The B. N. Ousterhoudt Spring Wagon Manufacturing Company and Samuel Hamilton were made defendants. No service was obtained on tlie Ousterhoudt Company. The wagons were taken under the writ from Hamilton and delivered to plaintiff. Car-wood P. Butts intervened by petition, asserting a lien as warehouseman On the trial in the county court there
The plaintiff, who brings the case here, asserts that Butts did not become a party, and for that reason should not have been heard. We do not think the record bears that construction. It shows that in the county court Butts was given leave to file his petition of intervention. The order at the time of judgment dismissing it was not a refusal to permit him to be heard, but a final judgment against him on the merits of his claim, from which he had a right to appeal.
It is also argued that, the appeal being joint and Hamilton having made default, the whole appeal .fell. We do not consider this, because the question could not be properly raised, as was here attempted, by objection to evidence on the trial. The same is true of the suggestion, which at once occurs, whether a defendant and an intervener claiming distinctly from one another can both obtain the position of appellants under a single undertaking.
The exceptions to the instructions were well taken. Butts’ only pleading in the district court was an answer to the petition, in effect a general denial. The petition asserted nothing against him. It alleged that plaintiff
Reversed and remanded.