Runquist v. Anderson

64 Neb. 755 | Neb. | 1902

Hastings, G.

This is an action for conversion, brought by the wife of an execution debtor against the execution creditor, who procured a levy and sale of personal property. Complaint is made of certain instructions to the jury given and refused; that the verdict is not sustained by sufficient evidence; that the evidence shows an estoppel on the plaintiff’s part to claim the property in question by reason of her conduct after the levy in connection with giving a redelivery bond to the officer; and, finally, certain refusals of evidence by the trial court are urged as being fatally erroneous. . .

The complaint, en masse, as to the giving of eight instructions, and in the same way as to the refusal of four instructions, need not be considered. In each batch are some, at least, which were proper. Under the repeated, rulings of this court, if any of those refused should not have been given, the action of the court must be affirmed, and the same is true as to the eight given by the court. The district court held, and instructed the jury, that the signing of the redelivery bond of itself would not estop the plaintiff from claiming title to the property after its return to the officer who had levied upon it. No exception appears to the giving of any of the instructions in which this is stated, except instruction 13. The giving of this instruction is expressly complained of in the petition in error, and it was expressly excepted to at the time it was given. It contains, as before stated, the district court’s conclusion that the giving of the redelivery bond of itself would constitute no estoppel against plaintiff’s claiming title in the property after its return to the officer. This is apparently the main legal question in the case. We are not cited to any holding that the recitals in this bond would’prevent the assertion of title by the plaintiff to the property after the bond had been complied with and the property returned. In Cooper v. Davis Mill Co., 48 Nebr., 420, a number of cases are cited to the proposition that such a bond would not create such an estoppel, but it is expressly declared that this question does not arise in that case, and is not decided. Counsel for the defendant says that the question has not been decided in this state. In Hilton v. Ross, 9 Nebr., 406, the giving of such a redelivery bond is held not to estop the defendant from questioning the validity of the seizure and moving to dissolve the attachment. This conclusion is reaffirmed in Wilson v. Shepherd, 15 Nebr., 15. The cases cited with apparent approval by this court in Cooper v. Davis Mill Co., 48 Nebr., 424, from other states, bold that the surety on such a bond may, by appropriate action, set up title in himself after the property has been restored to the officer. We are satisfied with the soundness of this doctrine and the correctness of the trial court’s conclusion that the redelivery bond of itself did not estop plaintiff from claiming title. It is thought that there was no prejudicial error in the giving or refusing of instructions.

The evidence seems to have been sufficient to have supported even a larger verdict than plaintiff recovered, but the jury were warranted in concluding that the property was really bought in for the most part by the husband’s brother, and for plaintiff and her husband’s use. The woman, in truth, seems to have been simply given a verdict for one cow’s value, and the evidence clearly showed her placing of one cow on the farm.

The evidence offered that defendant loaned money to plaintiff’s husband on the faith of the latter’s ownership of the property in question was rightly refused. No offer was made to connect the plaintiff with the transaction. The only issues were whether or not the property belonged to the plaintiff, and whether or not she was estopped from claiming it by the redelivery bond and the circumstances of its execution. No estoppel by reason of permitting her husband to get credit on the strength of ownership of her property was alleged, and the facts of these negotiations between defendant and her husband, which were not offered to be connected with her, bad no bearing on the ques-(ions at issue. The same is true, with the addition that tin: whole matter was still more remote, as to proposed evidence of conversations of defendant with Axel Anderson, (he purchaser of the property at the execution sale. Quite ¡.ossibly the statements of Axel Anderson were as to things which would have tended to disprove plaintiff’s ownership, but, if so, his statements out of court to' the defeudant had no place at the trial. His knowledge, if desired, should have been put in through his own testimony. His statements are not declarations as to title, made by an owner, but are merely as to the conducting of the sale, held at defendant’s instance.

It is recommended that the judgment of the trial court be affirmed.

Day and Kirkpatrick, CC., concur.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is

Affirmed.