Barton v. McKay

• Decision Date: 11 April 1893
• Citation: 36 Neb. 632,54 N.W. 968
• Parties: BARTON, SHERIFF, v. MCKAY.
• Court: Nebraska Supreme Court

36 Neb. 632

54 N.W. 968

BARTON, SHERIFF,

v.MCKAY.

Supreme Court of Nebraska.

April 11, 1893.

Syllabus by the Court.

1. Affidavits used in support of a motion for a continuance in the district court, to be available in the appellate court, must be made a part of the record by a bill of exceptions.

2. Permitting counter affidavits to be used on the hearing of such a motion is improper.

3. Where such affidavits are used, and the application for a continuance is denied, the judgment will not be reversed for that reaaon, where the showing of the party making the application, when considered alone, is insufficient to entitle him to a continuance.

4. The evidence in this case examined and considered, and held to support the judgment of the court below, and that the verdict is not excessive.

5. The ex parte affidavit of W. L. S. was properly excluded from the jury on the trial of the cause, as it was inadmissible under the rules of evidence.

6. The rulings of the trial court, in not permitting the defendant to answer certain questions propounded to him by his counsel on direct examination, cannot be reviewed by this court, for the reason no offer was made in the trial court to prove the facts which the party complaining assumes the questions would have elicited.

7. The supreme court will not review the instructions given to the jury by the court below, nor those asked and refused, where the attention of the court has not been called to them in the motion for a new trial.

8. The instructions to the jury in this case, when considered and construed together, fairly state the law applicable to the issues raised by the pleadings and proofs.

9. The defendant's third request to charge was properly refused, inasmuch as it was covered by other instructions which were given.

Error to district court, Saline county; Morris, Judge.

Action by Alexander S. McKay against John Barton to recover for the conversion of a stock of goods seized by defendant, as sheriff, on writs of attachment. There was judgment for plaintiff, and defendant brings error. Affirmed.F. I. Foss, for plaintiff in error.

Hastings & McGintie and A. S. Tibbets, for defendant in error.

NORVAL, J.

This action was brought in the court below by Alexander S. McKay against John Barton, as sheriff, for the conversion of a stock of goods seized on two writs of attachment against Lusk Bros. & Co. From a judgment on a verdict in favor of plaintiff for the sum of $2,331.10, defendant brings the cause to this court for review by petition in error.

The first ground upon which a reversal is asked is the overruling of defendant's motion for a continuance of the action on account of an absent witness. The record fails to disclose that there was any abuse of discretion in denying the application. That every presumption is in favor of the correctness of the decision of a trial court, until the contrary is made affirmatively to appear, is elementary. Error is never presumed. Tested by this rule, the decision under consideration must be upheld. The record fails to inform us upon what facts the trial court predicated its decision. It is true the journal entry recites that the motion for a continuance was heard upon affidavits, and the transcript contains a copy of an affidavit made by Mr. Foss, defendant's attorney, as well as copies of other affidavits, which latter, judging from their contents, were made in resistance of the motion. Yet there is absolutely nothing to show that any of the affidavits were read or considered on the hearing of the application. Hence, they cannot be considered by this court. Our decisions to the effect that affidavits used in the district court at the hearing of the motion, to be available in this court, must be preserved in the bill of exceptions, ought not to be misunderstood, inasmuch as we have so frequently passed upon the question. Walker v. Lutz, 14 Neb. 274, 15 N. W. Rep. 352;Tessier v. Crowley, 16 Neb. 372, 20 N. W. Rep. 264;Graves v. Scoville, 17 Neb. 593, 24 N. W. Rep. 222;Olds Wagon Co. v. Benedict, 25 Neb. 372, 41 N. W. Rep. 254;Barlass v. Braash, 27 Neb. 212, 42 N. W. Rep. 1028;Burke v. Pepper, 29 Neb. 320, 45 N. W. Rep. 466;Strunk v. State, 31 Neb. 119, 47 N. W. Rep. 640;Van Etten v. Kosters, 31 Neb. 285, 47 N. W. Rep. 916. Even though the affidavit of Mr. Foss should be considered by us, we think the court was justified in refusing to continue the case. Three continuances already had been granted,--one at the March, 1889, term, by consent; and at the October term of the same year, and the March term, 1890, continuances were granted, on motion of the defendant, for the purpose of obtaining the testimony of one William S. Lusk, who was absent from the state. The last application was based upon the absence of the same witness, and the affidavit fails to show that either the personal attendance of Mr. Lusk or his evidence would probably be obtained if the trial had been postponed or the cause continued until the next term of the district court. For that reason the affidavit was insufficient to justify a continuance. Polin v. State, 14 Neb. 540, 16 N. W. Rep. 898;Manufacturing Co. v. McAllister, 22 Neb. 359, 35 N. W. Rep. 181;Rowland v. Shephard, 27 Neb. 494, 43 N. W. Rep. 344.

Complaint is made because plaintiff was permitted to file affidavits in resistance of the motion for a continuance. It is not the proper practice to allow counter affidavits to be read at the hearing of such a motion. Gandy v. State, 27 Neb. 707, 43 N. W. Rep. 747, and 44 N. W. Rep. 108;Miller v. State, 29 Neb. 437, 45 N. W. Rep. 451. But we are unable to see in what manner the defendant in this case was prejudiced by the use of counter affidavits, since, upon his own showing, if the said affidavit in support of the motion be considered, he was not entitled to have the trial postponed. For another reason, we cannot say that error prejudicial to the defendant was committed by the receiving of counter affidavits, as we have no means of hearing what they contained; they not having been made a part of the record by a bill of exceptions.

It is insisted that the verdict is not supported by the evidence. It appears that the goods in controversy formerly belonged to the firm of Lusk Bros. & Co., of Friend, which firm was composed of Abner P. Lusk, William S. Lusk, and Joseph Boynton. On the 11th day of January, 1888, the partnership, by mutual agreement, was dissolved, and by written contract, signed by each partner, the partnership property was divided between them. Abner P. took the real estate, and assumed the incumbrances thereon, amounting to about $2,400; William S., for his share, received the goods in suit, of the value of $2,767.12, also certain notes and bank accounts, and agreed to pay the firm indebtedness not secured by the real estate, aggregating over $2,100; and Boynton received notes and accounts of the value of some $700. The agreement for dissolution was duly recorded, and the property of the firm was divided according to the terms thereof. On the 14th day of January, 1888, William S. Lusk executed and delivered to the defendant in error, Alexander McKay, his promissory note for the sum of $2,000, and secured the payment thereof by giving a bill of sale on the stock of goods in dispute. McKay took possession under his bill of sale. Subsequently, on the 17th day of January, 1888, two creditors of the firm of Lusk Bros. & Co. sued out writs of attachments against the firm, and placed the same in the hands of plaintiff in error, who levied upon said stock of goods, and sold the same under the writs. At the time of the levy, McKay was in possession of the stock. Plaintiff in error insists that the goods were the property of Lusk Bros. & Co.; that the note and bill of sale were without consideration, and that they were given for the purpose of defrauding the creditors of said firm. So far as the question of ownership is concerned, the facts bearing thereon are substantially as given above, with the exception of what we are now about to state. At the trial, Abner P. Lusk testified, on behalf of the defendant below, that the possession of the goods was never delivered to William S. Lusk, but that they were turned over to McKay with the distinct understanding that he should sell a sufficient amount to pay the unsecured debts of the firm, after which the goods remaining unsold were to be delivered to said William S. Lusk. This testimony is flatly contradicted by both McKay and Joseph Boynton. They deny that there was ever any such arrangement, or that it was ever talked of or mentioned in their presence. It appears that the partnership was dissolved on account of differences which arose between the Lusk brothers. Prior to the dissolution, the firm was not being pressed by their creditors, but as soon as the partnership was dissolved the creditors took steps to collect their claims. We are convinced from a reading of the evidence that the possession of the stock was delivered to William S. Lusk under and according to the terms of the contract of dissolution. It is uncontradicted that, at the time the firm went out of business, it was indebtedto McKay, for money loaned, in the sum of $130. William S. Lusk on the 12th of January, 1888, went...