18 Neb. 569 | Neb. | 1886
The defendant in error has filed a motion to quash the bill of exceptions herein, “ because the same was not presented within forty days from the adjournment of the court below, in accordance with the leave granted by said court.”
The order of the court fixing the time in which to prepare the bill is as follows: “ Defendant has leave to present his bill of exceptions in forty days from the adjournment of this court.” The point made by the defendant is, that the word “ present ” used in the order means to present to the judge for his signature, and does not mean to prepare the bill. Without entering into a discussion of the meaning of the words prepare and present, it is apparent that the intention of the court was to grant forty days from the adjournment of the court in which to prepare the bill and’
2. The defendant’s attorneys also move to strike out of' the bill of exceptions certain papers relating to attachment proceedings, in which Reed, Jones & Co. were plaintiffs and the Beal Brothers defendants, and also where D. M.. Steele & Co. were plaintiffs and Beal Brothers defendants,, for the reason that “ the same are not identified in or authenticated by, or in any manner made a part of, the bill of exceptions herein.” It is also alleged that an “ affidavit was not submitted to the attorneys of defendant in error-within forty days from the adjournment sine die of the-court.” It appears from the certificate of the judge that the papers in question were offered in evidence, and they-are identified by the initials of the judge written by himself on the margin. The papers are sufficiently identified,, therefore, and will not be stricken out of the bill. The-affidavit of the attorneys of the defendant in error accompanying the motion fails to allege that the affidavit for an attachment to which objections are made was not offered in evidence. So far as appears, the bill as signed is absolutely correct, and such is the presumption.
The question to what extent a judge, before signing a bill of exceptions containing the evidence, where it has been previously agreed upon by the respective attorneys, may add to the same, is not presented in this case. The motion to strike out is overruled.
3. It appears from the record that on October 6th, 1882, Asher Beal and Harlan Beal were partners doing a general mercantile business at Superior, in Nuckolls county ¿
The case was tried upon the theory that the goods in question being in the hands of an assignee were in custodia legis, and therefore not subject to attachment. This would be true if the assignment was valid; but in this case the defendant below set up in his answer, and sought to prove, that the assignment was fraudulent, and intended to defraud the creditors of the firm, and that Harlan Beal was one of the creditors to be paid out of the proceeds. This was stricken out of the answer, and proof thereof ■excluded. This, we think, was error. Where a firm is insolvent the partnership property will be applied to the payment of the partnership debts, and an individual cred
In Lininger v. Raymond, 12 Neb., 170, it is said; “When, instead of distributing his property among his creditors as far as it will go, the assignor places it beyond their reach by an assignment, for the purpose of preserving it for his own use or that of a friend, courts do not hesitate to- declare such assignment void, because, under the pretext of an assignment, the debtor -has concealed or prevented the application of his property to the payment of his debts. But where the debtor parts with all control.of his property,, and devotes it absolutely to the payment of his debts, without reservation, the advantage to creditors is clear and direct, and although there may
4. The court instructed the jury as follows : “ In this «ase you will find for the plaintiff, and you will assess to the plaintiff such damages as from all the evidence in this «ase you shall find he has sustained by reason of the illegal taking and detention of the personal property in this action.”
The testimony tends to show that the goods in question had been held under the orders of attachment heretofore mentioned, for about nine months, when a sale of the attached property being about to take place under the orders of the court, the assignee brought this action to obtain possession of the goods. Without considering the unexplained delay in bringing the action, the instruction furnishes no guide to the jury to enable them to estimate the damages properly. It is similar in this regard to that in Wasson v. Palmer, 13 Neb., 378, which was held to be erroneous. The sole purpose of an instruction upon the' question of damages is to furnish the jury a rule by which to estimate the same, otherwise they would be left entirely to their own guidance, and an erroneous verdict would almost invariably be the result.
In conclusion, it is evident that there are many facts and circumstances connected ■ with this case that were not investigated on the former trial that should be fully examined on the next. The judgment of the district court is reversed, and the cause remanded for further proceedings.
Reversed and remanded.