Tait v. Reid, 91 Neb. 235

Tait v. Reid

91 Neb. 235 | Neb. | 1912

Barnes, J.

Action in the district court for Lincoln county upon a foreign judgment aided by an attachment and garnishment.

It appears that the defendant, who formerly resided in the state of Iowa, on the 11th day of September, 1909, entered into an agreement with one Taylor of Cedar Rapids, in that state, to purchase a tract of land known *236as the Taylor addition to North Platte, in Lincoln county, Nebraska, of which Taylor was the owner, for an agreed consideration of $13,000, of which defendant paid the sum of $400. Taylor retained the legal title, but agreed to convey the land to the defendant Reid upon the payment of the balance of the purchase price. By the terms of the agreement Reid was to have the right to enter upon the premises for the purpose of showing lots and making sales thereof. That on or about the 12th day of September of that year defendant and his wife removed from their home in Cedar Rapids, Iowa, to North Platte, Nebraska, to engage in the business of selling real estate; that before defendant left the state of Iowa the plaintiff had obtained a judgment against him in the courts of that state; that on or about the 2d day of February, 1910, plaintiff commenced this action upon that judgment, in the district court for Lincoln .county, and obtained a writ of attachment therein, which the sheriff attempted to levy upon the real estate above described, and garnishee process was served upon the bank in North Platte, where defendant and his wife each had money on deposit. Personal service was had upon the defendant Reid, who, after entering his appearance, filed a motion to dissolve the attachment for the reason, among others, that his interest in the real estate, if any, was not subject to execution or attachment. Upon the trial of the cause the district court rendered judgment for the plaintiff, ordered the bank to pay the money in its possession into court, but dissolved the attachment so far as it related to the real estate, upon the ground, and for the reason, above stated. From that part of the judgment the plaintiff has brought the case to this court by petition' in error.

In 1907 the legislature passed an act to provide for appeals to the supreme court in civil cases, and repealing the statutory provisions then existing for the prosecution of proceedings in error to the supreme court. Laws 1907, ch. 162. Since that law went into effect civil cases can only be brought to this court upon appeal. There was no *237motion to dismiss tbe proceeding, and tbe defendant filed bis answer witbin tbe time allowed by law. No objection was interposed by tbe parties, and therefore the case will be treated as though it were brought here by appeal.

An examination of tbe record discloses that tbe question here presented was tried upon its merits; that evidence was introduced in tbe form of affidavits and counter affidavits, together witli considerable oral testimony showing or tending to show the-defendant’s residence, bis interest, if any be bad, in tbe real estate in question, and this evidence seems to have been preserved in tbe form of a bill of exceptions.

Tbe record further discloses that tbe plaintiff filed no motion for a new trial, and tbe alleged error of which be now complains was never presented to tbe district court for its consideration or determination. The well-established rule in such case is that this court will look into tbe record to ascertain if tbe pleadings state a cause of action or defense and support tbe judgment or decree accordingly, but it will not go back of the verdict rendered by tbe jury or findings of fact made by the trial court to review anything done or any proceeding bad. Johnson v. Songster, 73 Neb. 724; Storey v. Burns, 53 Neb. 535; Holmes v. Lincoln Salt Lake Co., 58 Neb. 74.

An examination of tbe pleadings and affidavit for attachment satisfies us that they are sufficient to support tbe decision of the trial court and sustain tbe findings and judgment appealed from.

Therefore, tbe judgment of tbe district court is

Affirmed.