25 Neb. 193 | Neb. | 1888
The defendant in error brought an action of replevin against the plaintiffs in error in the county court of Red Willow county, and on the trial judgment was rendered in his favor. The case was then taken on error to the district court, where the judgment of the county court was affirmed. The record shows that the "VanNatta Lynds Drug Co. was made a defendant in the county court, but there is no evidence of service upon the company. That •company also filed a petition to intervene, the ground of intervention being stated as follows: “ That Franklin W. Eskey is in possession of said stock by virtue of a writ of replevin issued and levied thereon. That your petitioner has a valid, subsisting, and legal interest in said stock, as a creditor of D. R. White, for the purchase price of said stock, and is entitled to the possession of the same.”
The county court treated the action as pending against the drug company, and entered a default against it, and made no ruling on the petition to intervene. The evidence in the case is exceedingly meagre, and w.e are left to conjecture in regard to several matters. We find a large number of affidavits in support of and against the entry by the county judge of a default against the drug company, and. the clear weight of the evidence sustains the entry. The county court should have ruled on the petition to intervene, but we know of no case where a mere general creditor, having no claim upon the goods themselves, can intervene. The petition for intervention, therefore, fails to show any right of the drug company to the possession of the goods. The failure to rule upon the petition, therefore, was error without prejudice.
2d. After default was taken against the drug company, witnesses were called to testify in relation to the property, but none of this testimony is preserved in the record,
Judgment affirmed.