B. F. Sturtevant Co. v. Bohn Sash & Door Co.

• Decision Date: 05 October 1899
• Citation: 59 Neb. 82,80 N.W. 273
• Parties: B. F. STURTEVANT CO. v. BOHN SASH & DOOR CO. (MIDDLEBORO NAT. BANK ET AL., INTERVENERS).
• Court: Nebraska Supreme Court

59 Neb. 82

80 N.W. 273

B. F. STURTEVANT CO.

v.BOHN SASH & DOOR CO. (MIDDLEBORO NAT. BANK ET AL., INTERVENERS).

Supreme Court of Nebraska.

Oct. 5, 1899.

Syllabus by the Court.

1. Money in custodia legis is not subject to the process of garnishment.

2. The garnishee may waive the defense that the money is not liable in his hands to garnishment.

3. Findings of fact based on conflicting evidence will not be disturbed on review.

4. One not prejudiced by a judgment cannot obtain a review thereof.

On rehearing. Modified.

For former opinion, see 78 N. W. 265.

NORVAL, J.

At the last term of this court the petition in error was dismissed, it being held that money about to be paid to a clerk of the district court to be distributed under decree of such court cannot be reached by garnishment out of county court against distributee. 57 Neb. 671, 78 N. W. 265. A rehearing has been allowed, and the cause again submitted for our consideration.

It is insisted that no one but Mr. Moores, the garnishee, had the right to raise the objection that the fund was in custodia legis, or question the validity of the attachment. We think the contention sound. But he could and did waive the defense that he was not liable to be garnished, by not making objections on that ground in the court below. The garnishment proceedings were not void, but voidable only in case the officer made a defense that the money sought to be garnished was in the custody of the law, and for that reason was not liable to be reached by the process invoked by the plaintiff.

The district court found the issues in favor of the interveners and against the plaintiff. This finding, having been based on conflicting evidence, in obedience to a long line of decisions, cannot be disturbed on review.

In argument it is said that in no event was it proper for the trial court to render judgment in favor of the interveners and against the garnishee; that the proper practice would have been to have dismissed the proceedings in attachment. Whether this contention is sound or not, we are not called upon to decide, since the garnishee has not sought a reversal of the judgment rendered against him, and one not prejudiced by a judgment cannot obtain a review thereof. Railroad Co. v. Martin, 47 Neb. 56, 66 N. W. 15. It follows that the plaintiff cannot be heard to complain of the judgment rendered against the garnishee.

Not only was the judgment entered against the garnishee for the full amount of money in his...