State ex rel. McClung v. Powell

10 Neb. 48 | Neb. | 1880

Maxwell, Oh. J.

The relator alleges that he is one of the constables of Schuyler precinct, in Colfax county, and that in August, 1878, the firm of Jellison & Miller recovered a judgment against James B. Richardson, before B. W. Powell, justice or the peace, for the sum of $57.55; that an execution was duly issued on said judgment and levied upon certain property in the possession of Richardson, which was claimed by Jane B. Richardson, the wife of said defendant; that said Jane B. instituted proceedings under the statute for a trial of the right of property, and that a jury was agreed upon by the parties and a trial of the right of property had, which resulted in a verdict and judgment for the judgment creditors; that a motion for a new trial was thereupon filed by the claimant to set aside said verdict because it was obtained by partiality and undue means; the justice thereupon set aside the verdict and judgment and granted a new trial. The relator alleges that setting aside said verdict and judgment has worked great and irreparable injury to him, as the said Jane B. Richardson has commenced an action against him for the recovery of said property, and for damages. Wherefore the relator prays that the successor of said justice may be required to re-instate said judgment on his docket, etc.

The proceeding for a trial of the right of property under the statute is a summary one, to be tried by the justice, and is not, in any just or legal sense, a “ civil action,” and therefore not properly triable by a jury. B’Hymer v. Sargent, 11 O. S., 684. It is a special proceeding, designed principally for the protection of the officer, and not being a civil action in the sense in which that term is used in the code, is necessarily governed by the special provisions of the statute related thereto. There is no provision for impaneling a jury in the original sections, nor does the amendment to the same, approved February 25,1875, contain any such provision. But where a jury is impaneled by agreement, or at the instance or request of the plaintiff in error, he cannot complain on that ground. B’Hymer v. Sargent, supra. No appeal is allowed from the judgment of the justice in this proceeding, but the case may be reviewed on error.

Alleged errors, however, cannot be reviewed on an application for a mandamus. The relator contends that not being a party to that proceeding, he could not object to irregularities or errors insetting aside the judgment. While this is true, it is not sufficient cause for this court to compel a justice to re-instate a judgment that, so far as appears, was properly set aside. If doubts exist as to the ownership of property levied upon by an officer, he may require an indemnifying bond before proceeding to sell the same. If he sell property claimed by another without an adjudication in favor of the judgment creditor, and without proper indemnity, he cannot invoke the aid of this court to shield him from the consequences of his own acts. As the application entirely fails to state a cause of action, the writ is denied.

"Writ denied.