41 Neb. 806 | Neb. | 1894
Fannie C. Walker, plaintiff in the district court of Gage county and defendant in error here, commenced her action in that court against plaintiffs in error, alleging in her petition that E. A. Wonderlick was a constable in and for Blue Springs township, in Gage county, and Lewis Borngasser, George Poffenbarger, and George B. Johnson were his bondsmen on his official bond as such constable, and that the Blue Springs Bank caused an attachment to be issued in an action commenced by it against one S. T. Walker, and placed the writ so issued in the hands of E. A. Wonderlick for service; that Black Bros, had theretofore obtained a judgment againt S. T. Walker and caused an execution to be issued thereon and delivered to E. A. Wonderlick for levy; that the plaintiff Fannie Walker was then the owner and in possession of a stock of groceries and some fixtures necessary and appropriate for carrying on a grocery business; that on February 18, 1890, the stock and fixtures were in a store-room in Blue Springs, in Gage county, then occupied by her, and in which she was engaged in and carrying on the business of a retail grocer with the goods, and had a fair trade; that the constable, E. A. Wonderlick, under and following directions given him by the Blue Springs Bank and Black Bros., and having been indemnified by them, levied the writ of attachment and of execution against S. T. Walker on her stock of groceries and sold them, or what remained in his hands after returning to her a quantity of goods of the value of
The first assignment of error argued in the brief of plaintiff which we will notice is that “ there was a misjoinder of parties defendant in this case, as appears by thepleadiings and the evidence.” When this case was instituted by Fannie C. Walker the defendants filed separate demurrers to the petition, stating, as grounds for the demurrers, first, that several causes of action were improperly joined; second, that the petition does not state facts sufficient to constitute a cause of action. Wonderliclc’s demurrer was overruled and the demurrer of the others sustained, and the suit dismissed in so far as it related to them. A review of the decision of the district court in a proceeding in error in this court from such action resulted in the judgment of the lower court as to all but Wonderlick being reversed and the case remanded for further proceedings. It was then held: “ Where an officer with process against the property of A seizes, by virtue thereof, the property, of B, he is guilty of official misconduct, for which he ánd his-sureties are liable on his official bond. Where the goods of B are wrongfully levied upon and sold on an execution and attachment against A, and the plaintiffs in those actions directed the levy and sale and indemnified the officer, they are jointly liable with him and his sureties for the wrong.” This branch of the case is reported in 33 Neb., 504. We are satisfied with the conclusions therein reached and the doctrine announced, and that the proof, as developed during the subsequent trial of the case, substantiated the allegations of the petition in reference to the part taken by the creditors, who were defeudants in this suit, in causing the levy to be made, and consequently that there was no misjoinder of parties. (See, also, Murray v. Mace, 41 Neb., 60.)
The eighth and ninth assignments of error referred to the giving and refusing certain instructions, quoting them by number and grouping those given, to which exceptions were taken and preserved together in one paragraph, and also those refused in another paragraph of the assignments in the petition in error. We have carefully examined the instructions given which are described by numbers in the eighth assignment and also those referred to in the ninth
The only other assignment of error which is insisted upon in the argument of counsel for plaintiffs in error in the briefs filed is that “the verdict in said case was contrary to the law and the evidence and not supported thereby.” The evidence adduced bearing upon the sale of the property in controversy from S. T. Walker, the husband, to Fannie C. Walker, the wife, whether bona fide or fraudulent, the main issue in the case to be determined by the jury, was conflicting, and the question raised was for the jury to answer, which they did by a finding on this point in favor of the plaintiff Fannie C. Walker, that the sale to her was made in good faith and was in all particulars an honest and actual transaction, and the evidence was sufficient to support such a finding on this branch of the case, and hence it will not be disturbed.
The verdict of the jury was for the sum of $773.03, from which, before judgment was rendered, there was remitted by the plaintiff Fannie C. Walker the sum of $189.24, which we presume was meant to include either the value of the goods returned by the constable to Mrs. Walker or the amount allowed by the jury as damages to her business caused by closing the store and depriving her of the use of the goods. There was a total lack of evidence upon which to predicate any calculation of damages on the claim for loss occasioned by the shutting up of the store and stopping the business. Mrs. Walker did not show that she had lost anything from this source; hence, whatever sum was contained in the verdict of the jury as an estimate of the damages for the loss of business was not sustained by
Judgment accordingly.