Hicklin v. Nebraska City Nat'l Bank

• Decision Date: 31 January 1879
• Parties: WILLIAM M. HICKLIN ET AL., PLAINTIFFS IN ERROR, v. THE NEBRASKA CITY NATIONAL BANK, DEFENDANT IN ERROR.
• Court: Nebraska Supreme Court

8 Neb. 463

1 N.W. 135

WILLIAM M. HICKLIN ET AL., PLAINTIFFS IN ERROR,

v.THE NEBRASKA CITY NATIONAL BANK, DEFENDANT IN ERROR.

Supreme Court of Nebraska.

January Term, 1879.

Error from Otoe County.

G. B. Scofield, for plaintiffs in error.

E. F. Warren, for defendant in error.

LAKE, J.

--The bill of exceptions containing the testimony and questions decided during the trial, having been quashed on motion of the defendant in error, the main question left for consideration is, whether the petition states facts sufficient to constitute a cause of action. This question was distinctly raised by demurrer in the court below, and there decided in the affirmative.

As shown by the petition, the action was brought on an undertaking executed by the defendant below to Frank M. Farher, as sheriff of Otoe County, in a certain replevin suit, brought before a justice of the peace by Thomas H. Adams, against said Farher, to recover the possession of a quantity of personal property held by him under an execution. On the giving of this undertaking the property was delivered to Adams, who disposed of it to his own use.

On the return of the order of replevin, it appearing from the appraisment that the property taken under it was of the value of over one hundred dollars, the justice duly certified the case to the district court, as the statute directs, where such proceedings were afterwards had as resulted in a judgment in favor of Farher for $563.10, the value of the goods, and damages, as returned by a jury, and costs taxed at $38.90. It is not alleged that the defendant in error (plaintiff below) had any interest in the execution under which the sheriff was in possession of this property. After showing the recovery of the judgment by Farher, in the replevin case, it is alleged in the petition “that such proceedings were afterwards had in said cause that this plaintiff was, by the order and judgment of said court, substituted in the place and stead of the said Frank M. Farher, sheriff as aforesaid, as defendant in said action, and it was by said court ordered, that all rights and benefits under said judgment should accrue to this plaintiff, and that execution should issue in the name and for the benefit of this said plaintiff upon said judgment, so as aforesaid recovered by said Farher against the said Thomas H. Adams.”

There is thus set out at length the fact, not only of the substitution of a person as party defendant who is not shown to have been at all interested in the matter in controversy, but this after the complete determination of the action by the rendition of a final judgment. Had the court, which is one of general jurisdiction, the power to do this?

Section 50 of the Code of Civil Procedure provides that, “in an action against a sheriff or other officer, for the recovery of property taken under an execution, and replevied by the plaintiff in such action, the court may, upon the application of the defendant, and of the party in whose favor the execution issued, permit the latter to be substituted as the defendant, security for the costs being given.” It is evident from the language here employed, that the sole object of this provision was to relieve the officer from whom property so held by him has been replevied, with the assent of the execution creditor, from the trouble and expense of making a defense to the action, and to place that matter within the control entirely of the real party in interest.

But where and when is this change of parties to be made? The language of the section is, “in an action;” not after a trial has been had, and a final judgment, which is the object and end of an action, has been rendered. “A judgment,” says the code (§ 428), “is the final determination of the rights of the parties in an action.” When the judgment is finally entered, the rights of the...