Ames v. Parrott

• Decision Date: 22 May 1901
• Citation: 86 N.W. 503,61 Neb. 847
• Parties: AMES v. PARROTT.
• Court: Nebraska Supreme Court

61 Neb. 847

86 N.W. 503

AMES

v.PARROTT.

Supreme Court of Nebraska.

May 22, 1901.

Syllabus by the Court.

1. Where a statute, in order to secure evidence of some act, requires it to be done in the presence of or attested by a specified number of persons, it is implied that such persons shall be disinterested, and no person having a direct interest in such act is a competent witness thereto.

2. Special statutory provisions respecting the manner in which attachments shall be levied must be strictly pursued, and departure therefrom will render a levy invalid.

3. The requirements of section 205 of the Code of Civil Procedure that a sheriff levying an attachment go to the place where property of the defendant may be found, and declare that by virtue of the order he attaches such property at the suit of the plaintiff, in the presence of two residents of the county, is not complied with by a levy and declaration in the presence of two persons one of whom is the plaintiff in the attachment.

4. In case no reply to material allegations of new matter in an answer appears in the record, and other issues are disclosed upon which the cause was properly triable, it will not be presumed that it was tried upon matters admitted by the pleadings. To bring the case within the exception that no advantage may be taken of want of reply where the trial proceeded upon the theory that a reply had been filed, there must be something in the record from which an inference may be drawn that reply was waived, or from which the court may know what issues were in fact tried.

5. The time within which a motion for a new trial is required to be filed is to be reckoned from the date of rendition of the decision of the trial court, and not from the date of entry thereof.

6. No motion for a new trial is necessary where the error complained of is that the pleadings, taken together, do not support the judgment.

Error to district court, Douglas county; Dickinson, Judge.

Action by Jerome B. Parrott against George W. Ames. From a judgment in favor of plaintiff, defendant brings error. Reversed.Lake, Hamilton & Maxwell, for plaintiff in error.

Cowin & Abbott and Lee Helsley, for defendant in error.

POUND, C.

Parrott, hereinafter referred to as “plaintiff,” sued Ames, hereinafter styled “defendant,” setting up five causes of action for services rendered and money loaned. An order of attachment was issued at the instance of the plaintiff, and levied upon the lands of the defendant. The latter moved to discharge the attachment on the ground that the levy was irregular and invalid, and is here upon error from the order of the court overruling such motion and from the judgment of the court in favor of the plaintiff upon the main case.

The sheriff's return shows that upon receipt of the order of attachment he went to the lands to be levied upon, and attached them “in the presence of J. B. Parrott and F. P. Salmon, two residents of Douglas county, state of Nebraska.” It appeared in evidence upon the motion to discharge the attachment, and the court found, that “the J. B. Parrott named by the officer in his return to said order of attachment and Jerome B. Parrott, plaintiff herein, are one and the same person,” and it does not appear, and is not claimed, that any other person than said Parrott and Salmon was present at the time of the levy. For these reasons the defendant contends that the requirements of the statutes were not complied with, and that the levy is invalid. The Code of Civil Procedure (section 205) provides that in levying an attachment the officer “shall go to the place where the defendant's property may be found, and there in the presence of two residents of the county, declare that by virtue of said order he attaches said property at the suit of said plaintiff; and the officer, with the said residents, who shall be first sworn or affirmed by the officer, shall make a true inventory and appraisement of all the property attached, which shall be signed by the officer and residents, and returned with the order.” Is the plaintiff in attachment, being a resident of the county, a proper person to witness the levy and declaration thereof by the sheriff under this section? Requirements of this nature are very common in attachment statutes, and are to be found in some of the earnest statutes upon the subject. In the most recent statutes the tendency is to substitute a requirement that a copy of the writ and proceedings be filed with the recorder or register of deeds. But in either case the obvious purpose is to make the levy public and notorious, to prevent attachment liens from attaching secretly and by surreptitious entries and indorsements, and to enable the other party to inquire into the date of and circumstances attending the levy; and the courts have so construed them. Bryant v. Duffy, 128 Mo. 18, 30 S. W. 317;Root v. Railroad Co., 45 Ohio St. 222, 12 N. E. 812. If this is the purpose of the requirement, we think that it follows that no person having a direct interest in the levy is a competent witness thereof. In the analogous cases of attesting witnesses to deeds and mortgages it is well settled that they must be without direct or certain legal interest in the act attested. Interested parties have also been held disqualified from attesting a chattel mortgage (Seibold v. Rogers, 110 Ala. 438, 18 South. 312), or a signature to a note by mark, required by statute to be attested (Chadwell's Adm'r v. Chadwell, 98 Ky. 643, 33 S. W. 1118). The object of requiring attestation of deeds and other instruments is to enable the other party to inquire into the circumstances attending the sealing and delivery (Markley v. Swartzlander, 8 Watts & S. 172), and, although the incompetency of grantees or parties directly interested in conveyances to attest their execution has sometimes been put upon the ground of common-law incapacity to testify to the facts in court, and sometimes upon construction of particular statutes (Child v. Baker, 24 Neb. 188, 38 N. W. 725), the prevailing and better view is that public policy is the true basis thereof. Amick v. Woodworth, 58 Ohio St. 86, 50 N. E. 437;Donovan v. Elevator Co., 8 N. D. 585, 80 N. W. 772. We are not unaware, in reaching this conclusion, that the common-law disqualifications of witnesses by reason of interest have been done away with, nor have we overlooked that disqualification of interested attesting witnesses having been rested by some upon incompetency to testify in court, the removal of the latter disqualification has sometimes been thought to obviate the former. Fisher v. Porter, 11 S. D. 311, 77 N. W. 112. But we prefer to adhere to those authorities which recognize an inherent disqualification resting upon public policy, and unaffected by the change in the rules of evidence. In Amick v. Woodworth, supra, the court says: “The true reason of the disqualification, we apprehend, is that, to permit a grantee to attest as a witness the execution of an instrument made to himself, or take its acknowledgment as an officer, where its attestation and acknowledgment are necessary to give it validity, would be against public policy, and practically defeat the real purpose of the law, which is to prevent frauds on grantors, and afford reasonable assurance to those who deal with or on the faith of such instruments that they are genuine, and represent bona fide transactions.” In Donovan v. Elevator Co., supra, the court, quoting from the foregoing, adds: “But not only is the construction contended for by respondent repugnant to the intent and purpose of the statute, but it is, we think, entirely out of harmony with its language as commonly understood; for we think men generally understand it to mean the calling in of a person who is not a party to a transaction to hear and see its consummation, and subscribe his name as a witness to what the parties have in his presence consummated, and that parties to the contract are disqualified to act in that capacity; and such is the weight of authority.” In Association v. Spencer, 26 Conn. 195, it is held that a statute requiring conveyances of land to be attested by two witnesses implies that the witnesses are to be disinterested. Likewise, in Horbach v. Tyrrell, 48 Neb. 514, 521, 67 N. W. 485, 488, 37 L. R. A. 434, 437, this court said: “It would seem that on grounds of public policy an officer should be disqualified from taking an acknowledgment whose direct and beneficial interest would be subserved by having the conveyance made which he acknowledged.” Without citing other instances, it is evident that where the law, in order to secure evidence of some act, requires it to be done in the presence of or attested by a specified number of persons, an implication arises that these persons shall be such as are not directly interested in the act and beneficiaries thereof. This conclusion is rendered the more certain in respect to the statute here in question because it is provided that the same persons who witness the levy shall inventory and appraise the attached property, which could not be done, with any propriety, by an interested party.

As Parrott, plaintiff in the attachment, was not a competent witness of the levy thereof, the case stands as if the sheriff had made this levy and declaration in the presence of one witness only, and we have further to consider the effect of such an irregularity thereon. It is a well-established rule that, where there is a special statutory provision respecting the manner in which levy of an attachment shall be made, it must be strictly observed, and that departure therefrom will invalidate the levy. 1 Shinn, Attachm. § 207; Drake, Attachm. §§ 194, 236a; 3 Enc. Pl. & Prac. 54; Fairbanks v. Bennett, 52 Mich. 63, 17 N. W. 696;Cary v. Everett, 107 Mich. 654, 65 N. W. 566;Main v. Tappener, 43 Cal. 206;Norvell v. Porter, 62 Mo. 309;Gates v. Tusten, 89 Mo. 21, 14 S. W. 827; Bottom's Ex'r v. McFerran (Ky.) 43 S. W. 236. Not only...