Tessier v. Lockwood Englehart & Co.

18 Neb. 167 | Neb. | 1885

Cobb, Ch. J.

This action was commenced by the defendants in error against the plaintiff in error in the district court of Gage county, to recover the sum of $1,963.19, claimed to be due from plaintiff in error to defendants in error. At the time of commencing the action plaintiffs therein also filed an affidavit and undertaking for an order of attachment against the property of the defendant therein, which was issued, and property attached thereon. The defendant in said action filed his motion in the district court to dissolve the attachment and discharge the attached property, for reasons therein stated, which motion was overruled. Defendant then filed his answer; a trial was had to a jury, with a verdict and judgment for the plaintiffs. A motion for a new trial being overruled, the defendant brings the cause to this court on error. The first error assigned is, “ that the ■court erred in overruling the motion to dissolve the attachment and discharge the attached property.” ’

The affidavit for the order of attachment is set out in the record as follows:

“State of Nebraska, “ Gage County.

“John A. Johnson, one of the plaintiffs, being first duly sworn, deposes and says that he has commenced an action in the district court of Gage county against Louis Tessier, ■to recover the sum of $1,963.19 now due and payable to the plaintiffs from the defendant on account for goods, wares, and merchandise sold and delivered by the plaintiffs to the defendant, at his special instance and request.

“ Affiant says that the said claim is just, and he ought as he verily believes to recover thereon the sum of $1963.19, and that the defendant, Louis Tessier, has assigned, removed, or disposed of his property, or is about to dispose of his property, or a part thereof, with the intent to defraud his creditors, and has rights of action which he conceals.” Subscribed and sworn to.

The provision of statute under which the said order of attachment was issued is as follows:

“ Sec. 198. The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof,, have an attachment against the property of the defendant, and upon the grounds herein stated: First. When the defendant, or one of several defendants, is a foreign corporation or a non-resident of this state; or Second. Has absconded with the intent to defraud his creditors; or Third. Has left the county of his residence to avoid the service of a summons; or Fourth. So conceals himself that a summons cannot be served upon him; or Fifth. Is about to-remove his property or a part thereof out of the jurisdiction of the court with the intent to defraud his creditors; or Sixth. Is about to convert his property or a part thereof into money for the purpose of placing it beyond the reach of his creditors; or Seventh. Has property or rights in action which he conceals; or Eighth. Has assigned, removed, or disposed of, or is about to dispose óf his property or a part thereof with the intent to defraud his creditors; or 'Ninth. Fraudulently contracted the debt or incurred the obligation for which suit is about to be brought.” * *

Here are nine distinct grounds or causes, upon either of which an order of attachment may issue. Some of them embrace but one allegation, while others, and most of them, are compound in their character; but whether single or compound, each one contains but a single cause of action, and it cannot be urged as an objection to an affidavit or pleading under this section that it contains disjunctive language, as long as it contains but one of said grounds or causes of action, and substantially follows the language of the statute. The eighth subdivision or group of grounds or causes of action contains five allegations,’ separated by the disjunctive conjunction or, but in the meaning of the statute it embraces but one ground or cause for attachment. No doubt if the affidavit contained two of the statutory groupings of grounds or causes separated by a disjunctive conjunction, the objection, reasoning, and authorities of counsel for plaintiff in error would be applicable and unanswerable, but such is not the case.

Counsel also object to the affidavit for attachment, because the affiant does not state that he is one of the plaintiffs therein in direct language, but only by way of recital. The statute requires the affidavit to be made by the “plaintiff, his agent, of attorney.” Of course where there is more than one plaintiff it can be made by either one of them, and simultaneously with the filing of the affidavit was also filed the petition in the case, whereby it appears that John Á. Johnson was one of the plaintiffs. But it is sufficient for the purposes of this case to say that this objection was never brought to the attention of the district court. Had it been the petition as well as the balance of the record being before the court, it would, doubtless, have-been overruled.

The second point is not relied upon in the brief, and will not be considered.

The third objection to the affidavit for attachment is, that it states plaintiffs “ought to recover the sum of $1,963.19 now due and payable,” while the petition shows that there was only $1,637.88 due at the time of the commencement of the action. This constitutes no objection to the proceedings, but if the plaintiffs in the court below knowingly and willfully attached a greater amount of goods than was necessary to pay their debt then due, with costs and expenses, they would probably be liable in-damages.

The fourth objection is, that the plaintiff’s claim is not stated in the order of attachment as it is in the affida vit. The contention of counsel is, that the statute requires thé order of attachment to contain a statement, of the nature as well as the amount of the plaintiff’s claim, to the end that the sheriff may know whether the defendant is entitled to the maximum exemption against the same or not. This view of the statute is certainly ingenious and worthy of consideration. But I do not think that the defendant in the case at bar can take advantage of any failure of the-order to state the-nature of plaintiff’s claim even if counsel’s view of the statute be adopted. The most that could be said of it is, that by failing to state the nature of the plaintiff’s claim they admit that defendant is entitled to the maximum exemption.

The fifth point of error is, that the court below refused to allow defendant to prove his counter-claim, which consisted wholly of a claim for damages caused by the taking ■of the defendant’s goods on the order of attachment issued in the case on trial, and the breaking up of defendant’s ■business, which resulted therefrom. In the pleading itself ■the defendant does not designate it as a counter-claim, but ■rather as a defense to plaintiff’s cause of action; but upon the trial, as appears by the bill of exceptions and in the ■brief, it is claimed to be a counter-claim.

The statute defines a counter-claim as follows: “The counter-claim mentioned in the last section must be one existing in favor of. a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s ■claim, or connected with the subject of the action.” Sec. 101, Code of Civil Procedure.

Now “ the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim,” and “the subject of the action ” in the case at bar is the purchase and gale of goods at sundry times between July 19th and December 20th, 1882, both inclusive. The counter-claim is based upon matters and transactions claimed to have occurred subsequently to the commencement of the suit in March, 1883.

In the case of Simpson v. Jennings, 15 Neb., 67, we had •occasion to examine the subject of counter-claim, and upon ■due consideration, and upon authorities there cited, the law was stated as follows: “ A claim on the part of a defendant, which he will be entitled to set-off against the claim of a plaintiff, must be one upon which he could at the date of the commencement of the suit have maintained an action, on his part, against the plaintiff.”

The sixth point urged by plaintiff in error in the brief of counsel arises upon the refusal of the court below to admit in evidence upon the trial the transcript of a judgment rendered by the superior court of Cook county in the state of Illinois.

The third plea or paragraph of the defendant’s answer is in the following words: “ The defendant for a third defense to this action further alleges that the plaintiffs herein did, on the 9th day of May, 1883, in the superior court of Cook county, Illinois, recover a judgment against the defendant herein for the sum of nineteen hundred and sixty-three and dollars, upon the same cause of action set. forth in plaintiff’s petition, and upon which plaintiff’s cause of action is founded, and said judgment remains a valid judgment unsatisfied and unappealed from,” etc.

.This defense was demurrable in not alleging either that the superior court of Cook county, Illinois, is a court of general jurisdiction, or that it had jurisdiction of the subject matter of said judgment, or of the person of said defendant. Said court being a foreign tribunal, in the sense-of the law and authorities, such allegation was necessary,, and its absence could be taken advantage of either by demurrer or by objection to the introduction of testimony under that paragraph of the answer, and perhaps in other-ways.

Upon examination of the record offered, it appears that while the judgment is in due form of a personal judgment, yet there was no personal service on the defendant, nor-indeed any proof of constructive service, which either this or the district court could recognize. Yet, if it be conceded that the court rendering the judgment offered in evidence was a court of general jurisdiction, there having been no personal service on the defendant, he being domiciled in another state than that of the court, and ha\ ing made no appearance in the action, the judgment in whatever form could have no extra territorial effect either as evidence or otherwise. See Story on Conf. of Laws, 8 Ed., note 6, pp. 809 and 810, and authorities there cited,. The admission of the record offered in evidence was therefore properly refused.

The judgment of the district court is affirmed.

Judgment affirmed.

The other judges concur.