Webster & Burr v. O'Shee, 13 Neb. 428

Webster & Burr v. O'Shee

13 Neb. 428 | Neb. | 1882

Maxwell, J.

In 1879, the defendant in error commenced an action by attachment against A. J. Odenwelder, before a justice of the peace of Lancaster county, to recover the sum of $100. Webster and Burr were served with notice of garnishment and appeared and answered. Afterwards judgment was rendered against Odenwelder for the sum of $100 and costs, and the plaintiffs in error were required as garnishees to pay the same. From that order they appealed to the district court, where the following stipulation was entered into: “It is stipulated by and between the plaintiff and the said garnishees Webster and Burr, that plaintiff may file petition against garnishees, and that garnishees may answer and defend as garnishees originally brought to this court to answer, and without denying or traversing Odenwelder’s indebtedness to plaintiff, may, without prejudice to them of order of garnish*430ment made before the justice of the peace, be heard upon their liability to Odenwelder in any sum whatever and try such question in this court, and in the finding and order in garnishment, if the garnishees are found to have any sum of the defendant Odenwelder in their hands, this court may enter judgment against garnishees as original sureties of defendant Oldenwelder, and execution thereon may issue as if garnishees were original joint debtors and parties defendant in this suit.” O’Shee then brought an action on the order. In their answer to the petition, the plaintiffs in error state in substance that in the year 1876 they received from an attorney in Pennsylvania a promissory note of one H. Valliant, for the stun of $162, with interest at 12 per cent. This note was drawn in favor of A. J. Odenwelder and was not endorsed, but was remitted to them for collection as the property of one Sheffler; that they had at that time another similar note drawn payable to Odenwelder and not endorsed, which they were advised belonged to Sheffler. That they collected on these notes the sum of $235.25 and no more, and that the collections were effected to a great extent by legal proceedings, and a just and reasonable charge therefor was the sum of $50, and that they paid costs^amounting to $2.50. They also plead that afterwards one Mc-Kissick, a son-in-law of Odenwelder, was arrested on the charge of felony committed in Colorado, and that they were employed by Odenwelder to defend him, which they did, and for which Odenwelder promised to pay them the sum of $224, which he has failed to do; therefore they ask to have the amount in them hands applied to the payment of said claims. The reply is a general denial. On the trial of the cause in the court below, the jury returned a verdict in favor of O’Shee for the sum of $122.22, upon which judgment was rendered.

The errors assigned are in substance that the verdict is against the weight of evidence; that the court erred in *431the instructions given,.and in the refusal to give the instructions asked. Without reviewing the evidence at length, in our opinion it fully sustains the verdict, and the instructions given were certainly favorable to the plaintiffs in error. As to the instructions asked, it is sufficient to say that they were not applicable to the issue made in the pleadings. There is no issue made in the answer that these notes belonged to Sheffler. It is stated that they were received as bis, but were drawn in favor of Odeuwelder and not endorsed. It is not alleged that the notes were Sheffler’s, nor under the most liberal rules of construction could the answer be so construed. The entire purport of the answer is that the notes belonged to Odenwelder, and that under an agreement with him, the plaintiffs in error were entitled to the proceeds. The instructions asked sought to submit the question of Odenwelder’s ownership of the notes to the jury. This would have been proper bad such ownership been denied, but it is not. Instructions must be applicable to the issue, and if they are not, they should be refused. It is very clear that justice has been done in the case, and the judgment is affirmed.

Judgment affirmed.